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THE   TWO 


HAGUE  CONFERENCES 


AND  THEIR  CONTRIBUTIONS  TO 
INTERNATIONAL   LAW 


BY 


WILLIAM  I.  HULL,  Ph.D. 

PROFESSOR    OF    HISTORY    IN    SWARTHMORE    COLLEGE,    MEMBER   OF 

L' ASSOCIATION    DES   JOURNALISTES    DE    LA    HAYE    DE 

LA    DEUXIEME    CONFERENCE    DE    LA    PAIX 


PUBLISHED   FOR  THE   INTERNATIONAL  SCHOOL  OF   PEACE 
GINN  &  COMPANY,  BOSTON 

1 90S 


Copyright,  1908 
By  WILLIAM    I.   HULL 


ALL    RIGHTS    RESERVED 


Cfte   atfitnaeum   &vte* 

G1NN  &   COMPANY  •   PRO- 
PRIETORS •  BOSTON  •  U.S.A. 


TO 
AMERICA'S   FIRST   DELEGATE 

TO  THE 

SECOND  PEACE  CONFERENCE 

AT  THE   HAGUE 

THE  HONORABLE  JOSEPH  HODGES  CHOATE 

JURIST,  DIPLOMATIST,  ORATOR,  STATESMAN 

WHOSE  LONG  CAREER  OF  SPLENDID  SERVICE 

TO  HIS  COUNTRY 

HAS  BEEN  CROWNED  BY 

A  NOBLE  AND  SUCCESSFUL  STRUGGLE 

IN   BEHALF  OF 

PEACE  AND  ARBITRATION  BETWEEN   THE  NATIONS 


PREFACE 

The  National  Educational  Association,  at  its  forty-fifth 
annual  session  in  Los  Angeles  last  summer,  adopted  a 
report  presented  by  its  Committee  on  Resolutions  which 
contained  the  following  section :  — 

"The  teachers  of  the  United  States  of  America,  assembled  in  the 
National  Educational  Association  at  Los  Angeles,  California,  view 
with  pleasure  and  satisfaction  the  conditions  which  have  brought 
about  the  second  Hague  Conference.  We  believe  that  the  forces  of 
the  world  should  be  organized  and  operated  in  the  interests  of  peace 
and  not  of  war;  we  believe  that  the  material,  commercial,  and  social 
interests  of  the  people  of  the  United  States  and  of  the  whole  world 
demand  that  the  energies  of  the  governments  and  of  the  people  be 
relieved  of  the  burdens  of  providing  at  enormous  expense  the  arma- 
ments suggested  by  the  competitive  desire  for  supremacy  in  war;  we 
further  believe  that  the  fear  of  war  and  the  possibility  of  war  would 
alike  decline  if  the  governments  were  to  rely  more  upon  the  sentiment 
of  the  people  and  less  upon  the  strength  of  their  armies  and  navies. 

"We  urge  upon  our  representatives  at  the  second  Hague  Con- 
ference to  use  their  influence  to  widen  the  scope  and  increase  the 
power  of  the  Hague  tribunal.  While  disclaiming  any  desire  to  sug- 
gest a  programme  or  to  urge  specific  action,  we  do  urge  our  represen- 
tatives to  secure  the  most  favorable  action  possible  upon  international 
arbitration,  the  limitation  of  armaments,  the  protection  of  private 
property  at  sea,  and  the  investigation  of  international  disputes  by  an 
impartial  commission  before  the  declaration  of  hostilities. 

"We  recommend  to  the  teachers  that  the  work  of  the  Hague  Con- 
ferences and  of  the  peace  associations  be  studied  carefully,  and  the 
results  given  proper  consideration  in  the  work  of  instruction." 

This  message  from  the  ten  thousand  teachers  present 
at  Los  Angeles  to  their  more  than  half  million  colleagues 


VI  THE   TWO   HAGUE   CONFERENCES 

in  the  United  States  was  the  culmination  of  a  movement 
which  included,  among  other  noteworthy  facts,  resolu- 
tions similar  in  tenor  passed  by  the  American  Institute  of 
Instruction  at  its  meeting  in  Montreal  and  by  the  Na- 
tional Association  of  School  Superintendents  at  its  meeting 
in  Chicago.  It  was  brought  to  the  author's  attention 
while  he  was  in  The  Hague  endeavoring  to  fulfill  the  mis- 
sion of  an  American  journalistic  representative  at  the  sec- 
ond Peace  Conference;  and  so  desirable  did  it  seem  that 
the  Association's  recommendation  to  its  members  should  be 
acted  upon  that  this  book  was  written  in  the  hope  that 
it  might  prove  of  service  to  them  in  carrying  it  out. 

The  arrangement  of  topics  is  such  that  either  a  consecu- 
tive account  of  each  conference  may  be  secured,  or  a  com- 
parative study  of  the  discussion  and  action  upon  each  topic 
by  the  two  conferences  may  be  made. 

The  participation  of  the  delegations  from  the  United 
States  in  the  work  of  each  conference  has  been  made  espe- 
cially prominent.  But  both  commendation  and  condem- 
nation, in  this  as  in  other  particulars,  have  been  carefully 
avoided.  For  the  object  sought  by  the  author  was  to 
present  a  true  and  impartial  —  a  historical  —  record,  and 
not  to  enter  upon  the  field  of  partisan  argument  or  theoreti- 
cal contention. 

As  to  the  proportionate  amount  of  space  devoted  to  the 
Various  topics,  it  may  be  said  that  some  of  them  which  have 
been  presented  in  some  detail,  although  but  little  or  no 
important  action  was  taken  upon  them  by  the  two  confer- 
ences, are  none  the  less  prominent  in  the  public  thought 
and  are  destined  to  play  an  important  role  in  future  con- 
ferences. 

The   sources  of   information   for   the  two  conferences 


PREFACE  Vli 

are  few  in  number,  but  are  both  official  and  satisfactory. 
For  the  first  conference,  the  official  record,  entitled  "  Con- 
ference Internationale  de  la  Paix,"  has  been  published 
in  a  large  quarto  volume  of  six  hundred  and  twenty  pages 
by  the  Netherlands  minister  of  foreign  affairs.  It  con- 
tains the  minutes  of  all  the  meetings  .of  the  conference,  its 
commissions  and  subcommissions ;  the  admirable  reports 
upon  the  discussions  of  the  subcommissions  and  commis- 
sions; and  the  official  text  of  the  conventions,  declara- 
tions, and  resolutions  adopted  by  the  conference.  The 
"Actes  et  Documents  relatifs  au  Programme  de  la  Con- 
ference de  la  Paix  de  la  Haye  1899,"  also  published  by 
order  of  the  Netherlands  government,  is  a  valuable  collec- 
tion of  materials  upon  which  the  work  of  the  conference 
was  based.  "The  Peace  Conference  at  The  Hague,"  by 
F.  W.  Holls,  a  member  of  the  United  States  delegation  to 
the  conference,  is  authoritative  and  interesting. 

The  official  record  of  the  second  conference,  identical 
in  character  with  that  of  the  first,  and  of  far  larger 
volume,  was  printed  from  day  to  day  during  the  confer- 
ence, but  has  not  yet  been  published.  Through  the 
courtesy  of  the  Netherlands  minister  of  foreign  affairs 
the  author  was  able  to  procure  a  complete  set  of  this 
record  and  to  base  his  account  of  the  conference  upon  it. 
Almost  all  of  the  multitude  of  documents  and  comptes- 
rendus  of  the  conference  were  published  in  the  Courrier 
de  la  Conference,  which  appeared  daily  during  the  sessions 
of  the  conference,  under  the  editorship  of  the  able  and 
distinguished  journalist,  Mr.  William  T.  Stead.  In  com- 
mon with  all  the  readers  of  the  Courrier,  the  author  of 
this  book  owes  a  large  debt  of  gratitude  to  Mr.  Stead  for 
the  enterprise  and  public  spirit  shown  by  him  in  inform- 


Vlii  THE   TWO    HAGUE   CONFERENCES 

ing  the  public  so  fully  of  the  work  of  the  conference,  and 
in  stimulating  and  informing  the  members  of  the  con- 
ference as  well. 

All  of  the  proceedings  of  the  two  conferences  were  con- 
ducted in  the  French  language,  and  since  the  speeches 
had  first  to  be  translated  from  the  speakers'  native  lan- 
guages into  French  and  then,  for  the  purpose  of  this  book, 
into  English,  it  can  not  be  hoped  that  their  original  flavor 
and  force  have  been  fully  retained.  But  it  is  to  be  hoped 
that  enough  has  been  retained  to  impress  readers  with  the 
great  and  genuine  eloquence  of  many  of  the  speeches, 
and  to  illuminate  the  serious  record  of  these  two  unique 
and  epoch-making  events  in  the  world's  history. 

Villa  Bosch  Hoek 
The  Hague 


CONTENTS 

I.    ORIGIN  page 

a.  The  Conference  of  1899 1 

b.  The  Conference  of  1907 3 

II.     PLACE   OF   MEETING 

a.  The  Conference  of  1899 6 

b.  The  Conference  of  1907 8 

III.  MEMBERS 

a.  The  Conference  of  1899  ......       10 

b.  The  Conference  of  1907  .        .        .        .        „        .13 

IV.  FESTIVITIES   AND   CEREMONIES 

a.  The  Conference  of  1899 17 

b.  The  Conference  of  1907 18 

V.     ORGANIZED    PUBLIC  OPINION 

a.  The  Conference  of  1899 21 

b.  The  Conference  of  1907 24 

VI.     ORGANIZATION 

a.  The  Conference  of  1899 28 

b.  The  Conference  of  1907 31 

VII.     MEETINGS 

a.  The  Conference  of  1899  ......      35 

b.  The  Conference  of  1907 40 

VIII.     PROGRAMME 

a.  The  Conference  of  1899 45 

b.  The  Conference  of  1907 47 

IX.     ARMAMENTS 

a.  The  Conference  of  1899 52 

b.  The  Conference  of  1907 69 

ix 


X  THE   TWO    HAGUE   CONFERENCES 

PAGE 

X.     WARFARE   IN  THE  AIR 

a.  The  Conference  of  1899 76 

b.  The  Conference  of  1907 79 

XI.     WARFARE  ON  THE   SEA 

A.  New  Arms  and  Methods 

a.  The  Conference  of  1899 83 

1.  Marine  Cannon 85 

2.  Explosives  and  Asphyxiating  Gases         .  87 

3.  Torpedo  Boats  and  Rams  .        .        .91 

b.  The  Conference  of  1907 93 

1.  Submarine  Mines 93 

2.  Naval  Bombardment 100 

3.  Merchant    Ships     transformed    into 

Cruisers 104 

B.  The  Geneva  Convention 

1.  Hospital  Ships 

a.  The  Conference  of  1899    ....  109 

b.  The  Conference  of  1907    .        .        .        .116 

2.  The  Personnel  of  Captured  Ships 

a.  The  Conference  of  1899    .        .        .        .118 

b.  The  Conference  of  1907    ....  124 

C.  The  Private  Property  of  Belligerents 

a.  The  Conference  of  1899 126 

b.  The  Conference  of  1907 

1.  Merchant  Ships  and  Cargoes    .        .        .133 

2.  Delay  of  Favor  to  Merchant  Ships       .  141 
^  The  Treatment  of  Captured   Merchant 

Crews 144 

4.  The  Exemption  of  Certain  Ships     .        .  144 

5.  The  Exemption  of  Mail     ....  146 
The  Rights  and  Duties  of  Neutrals 

a.  The  Conference  of  1899 146 

b.  The  Conference  of  1907 148 

1.  Belligerents  in  Neutral  Waters     .        .  149 

2.  Blockade 157 

3.  Contraband  of  War 160 

4.  Destruction  of  Neutral  Prizes        .        .  163 


<t 


CONTENTS 


XI 


E.  The  Laws  and  Customs  of  Naval  Warfare 

a.  The  Conference  of  1899 

b.  The  Conference  of  1907 

XII.     WARFARE  ON   LAND 

A.  New  Arms  and  Methods 

a.  The  Conference  of  1899 

1.  Explosives  .        . 

2.  Field  Guns 

3.  Muskets 

4.  Bullets 

b,  The  Conference  of  1907 

Bullets    

B.  The  Geneva  Convention 

a.  The  Conference  of  1899 

l>.  The  Revision  of  1906 

C.  The  Rights  and  Duties  of  Neutrals 

a.  The  Conference  of  1899 

l>.  The  Conference  of  1907 

1.  The    Rights    and    Duties    of    Neutral 

States      

2.  Neutrals  within  Belligerent  Territory 

L<t).  The  Laws  and  Customs  of  Warfare  on  Land 

1.  Belligerents 

a.  The  Conference  of  1899  . 

b.  The  Conference  of  1907  . 

2.  Prisoners  of  War 

a.  The  Conference  of  1899  . 

b.  The  Conference  of  1907  . 

3.  Means  of  injuring  the  Enemy 

a.  The  Conference  of  1899  . 

b.  The  Conference  of  1907  . 

4.  Spies,  Flags  of  Truce,   Armistice,  Capitula- 

tions 

a.  The  Conference  of  1899  . 

b.  The  Conference  of  1907  . 

5.  Occupation  of  Hostile  Territory 

a.  The  Conference  of  1899  . 

b.  The  Conference  of  1907  . 


166 
166 


169 
170 
171 
172 
181 

187 

190 

193 

199 
201 

202 
206 

213 

215 
220 

222 

228 

232 
235 


238 

243 

243 
256 


Xll 


THE   TWO    HAGUE   CONFERENCES 


XIII. 


6.  The  Opening  of  Hostilities 
The  Conference  of  1907 

ARBITRATION 

A.  Good  Offices  and  Mediation 

a.  The  Conference  of  1899  . 

b.  The  Conference  of  1907    . 

B.  International  Commissions  of  Inquiry 

a.  The  Conference  of  1899  . 

b.  The  Conference  of  1907   . 

C.  Obligatory  Arbitration 

1.  Arbitration  in  General 

a.  The  Conference  of  1899  . 

b.  The  Conference  of  1907  . 

2.  Specific  Cases 

a.  The  Conference  of  1899  • 

b.  The  Conference  of  1907  . 

3.  The  Forcible  Collection  of  Debts 

a.  The  Conference  of  1899  . 

b.  The  Conference  of  1907  . 

D.  International  Courts 

1.  The  Permanent  Court  of  Arbitration 

a.  The  Conference  of  1899  . 

b.  The  Conference  of  1907  . 
Arbitral  Procedure 

a.  The  Conference  of  1899  . 

b.  The  Conference  of  1907  . 
-3:  The  Court  of  Arbitral  Justice 

The  Conference  of  1907 

4.  The  International  Prize  Court 
The  Conference  of  1907 


2. 


PAGE 
262 


267 

275 


277 
288 


297 
3" 

326 
33i 

349 
35° 


37° 

387 

390 
402 

410 

427 


XIV. 


A  SUMMARY  OF  RESULTS  AND  THEIR  HISTORI- 
CAL  IMPORTANCE 

A.  Attempts 449 

a.  The  Conference  of  1899 

I.  Armaments 449 

II.  Warfare  on  the  Sea     .        .        .        .  451 


CONTENTS  xiii 


i.  Marine  Cannon 

2.  Torpedo  Boats  and  Rams 

3.  The    Private    Property   of    Bel- 

ligerents 

4.  Neutral  Rights  and  Duties 

5.  Laws  and  Customs  of  Warfare 

III.  Warfare  on  Land 453 

1.  New  Arms  and  Methods 

2.  Neutral  Rights  and  Duties 

IV.  Arbitration     .  .        .        .  454 

1.  Obligatory  Arbitration 

2.  The  Forcible  Collection  of  Debts 
b.  The  Conference  of  1907 

I.   Armaments 456 

II.   Warfare  on  the  Sea     ....    458 

1.  The    Private    Property    of   Bel- 

ligerents 

2.  Blockade 

3.  Contraband  of  War 

4.  Destruction  of  Neutral  Prizes 

5.  Laws  and  Customs  of  Warfare 

III.  Arbitration 461 

1.  International  Commissions  of  In- 

qui  RY 

2.  Obligatory  Arbitration 

B.   Achievements 463 

a.  The  Conference  of  1899 

I.   Warfare  in  the  Air      ....    465 
II.   Warfare  on  the  Sea     ....    465 

1.  Asphyxiating  Gases 

2.  The  Geneva  Convention 

III.  Warfare  on  Land 467 

1.  Bullets 

2.  The  Geneva  Convention 

3.  Laws  and  Customs  of  Warfare 

IV.  Arbitration 470 

1.  Good  Offices  and  Mediation 

2.  International  Commissions  of  In- 

quiry 


XIV  THE   TWO    HAGUE   CONFERENCES 


3.  The   Permanent  Court  of   Arbi- 
tration 

b.  The  Conference  of  1907 477 

I.  Warfare  in  the  Air      ....    478 
II.   Warfare  on  the  Sea     ....    479 

1.  Submarine  Mines 

2.  Naval  Bombardment 

3.  Merchant      Ships      transformed 

into  Cruisers 

4.  Restrictions    on    the   Right    of 

Capture 

5.  Belligerents  in  Neutral  Waters 

III.  Warfare  on  Land  ....    487 

1.  Neutral  Rights  and  Duties 

2.  Laws  and  Customs  of  Warfare 

IV.  Arbitration 490 

1.  The  Forcible  Collectk  in  of  Debts 

2.  Arbitral  Procedure 

3.  The  Court  of  Arbitral  Justice 

4.  The  International  Prize  Court 

C.  Indirect  Results 496 

I.   The  Federation  of  the  World      .        .         .    497 
II.   The  Third  Peace  Conference         .        .         .     500 

INDEX 5°5 


THE  TWO  HAGUE  CONFERENCES 

I.    ORIGIN 
a.   THE    CONFERENCE    OF    1899 

The  beginning  of  the  Nineteenth  Century  found  Europe 
struggling  in  the  throes  of  the  great  Napoleonic  Wars;  its 
end  saw  the  meeting  of  the  first  Peace  Conference  at  The 
Hague.  Our  own  country  was  drawn  into  the  Napoleonic 
struggle  and  fought  the  War  of  1 812.  At  the  end  of  that 
war,  when  the  civilized  world  lay  breathless  and  ashamed 
of  its  quarter  century  of  fighting,  the  first  peace  society 
was  organized  in  New  York  City.  Other  peace  societies 
were  slowly  formed,  and  the  next  generation  held  a  series 
of  international  peace  congresses  in  the  capitals  of  Europe.1 
But  then  ensued  another  generation  of  warfare,  and  it  was 
not  till  1889  that  the  international  peace  congresses  again 
assembled.  Sixteen  of  these  congresses  have  since  that 
time  been  held  in  the  large  cities  of  both  the  Old  World 
and  the  New,2  and  have  done  a  very  great  deal  to  prepare 
Ihe  way  for  the  conferences  at  the  Hague. 

The  marvelous  growth  of  commerce  in  the  Nineteenth 

1  In  London,  1S43;  Brussels,  1848;  Paris,  1849;  Frankfort,  1850;  London, 
1851. 

2 Paris,  London,  Rome,  Berne,  Chicago  (in  1893),  Antwerp,  Buda-Pesth, 
Hamburg,  Paris,  Glasgow,  Monaco,  Rouen,  Boston  (in  1904),  Lucerne, 
Milan,  and  Munich. 

I 


2  THE   TWO   HAGUE   CONFERENCES 

Century,  made  possible  by  steam  navigation  and  the  electric 
telegraph  and  cable ;  the  great  increase  of  travel  and  emi- 
gration from  one  country  to  another ;  the  steady  growth  of 
education,  the  steady  decline  of  what  Robert  Burns  called 
"the  inhumanity  of  man,"  and  the  steady  improvement  in 
the  methods  and  aims  of  governments,  —  have  all  aided 
greatly  in  the  growth  of  genuine  peace  sentiment,  in  the 
organization  of  peace  societies,  and  in  the  holding  of 
national  and  international  peace  congresses. 

But  the  immediate  cause  of  the  holding  of  the  first  Hague 
Conference  was  the  action  of  Nicholas  II,  Czar  of  Russia. 
It  has  seemed  very  remarkable  to  the  rest  of  the  world, 
and  even  to  many  Russians  themselves,  that  such  an  im- 
pulse towards  international  peace  should  have  come  from 
the  world's  largest  military  power,  the  one,  too,  which  can 
increase  its  military  strength  unrestricted  by  constitutional 
and  parliamentary  checks.  But  at  many  times  in  history 
"good  things  have  come  out  of  Nazareth";  and  there  is 
no  sufficient  reason  to  doubt  that  the  present  Czar  is  en- 
tirely sincere  in  his  desire  to  promote  the  world's  peace, 
and  to  diminish  the  burden  of  taxation  for  military  and 
naval  expenditures  which  presses  down  with  enormously 
increasing  weight  upon  the  shoulders  of  the  people. 

This  desire  of  the  Czar  found  practical  expression  when 
General  Kuropatkin  of  the  Russian  army,  M.  Witte,  Rus- 
sia's finance  minister,  and  Count  Mouravieffy  the  Russian 
minister  of  foreign  affairs,  were  endeavoring  in  the  sum- 
mer of  1898  to  avoid  the  necessity  of  replacing  an  anti- 
quated kind  of  artillery  by  a  new  and  expensive  one.  The 
discussion  of  this  question  gave  rise  to  the  discussion  of 
armaments  in  general,  and  by  the  Czar's  orders  Count 
Mouravieff  prepared  the  famous  "Rescript"  of  August  24 


ORIGIN  3 

(Russian  style,  August  12),  1898.  This  was  a  written 
statement  as  to  the  great  increase  in  armaments  in  recent 
years,  their  evil  results,  and  the  desirability  of  checking 
their  further  growth ;  and  it  proposed  that  the  governments 
should  send  representatives  to  a  conference  which  should 
"occupy  itself  with  this  grave  problem."! 

A  copy  of  this  statement  and  proposal  was  presented  by 
Count  MouraviefT  to  each  of  the  ambassadors  and  ministers 
from  other  countries  to  Russia  at  their  weekly  reception  at 
the  Foreign  Office  in  St.  Petersburg,  and  was  by  them  sent 
to  their  various  governments.  Some  of  these  governments, 
among  them  that  of  the  United  States,  promptly  accepted 
the  Czar's  proposal,  but  others  were  indifferent  to  its  ob- 
ject or  skeptical  as  to  its  result,  and  it  was  not  until  October 
24,  1898,  that  the  last  acceptance  was  received.  Two 
months  more  elapsed,  during  which  time  "war  and  ru- 
mors of  war"  almost  discouraged  the  Russian  government 
in  its  task ;  but  the  sympathy  of  the  public  in  every  Western 
country  had  been  aroused,  and  on  January  n,  1899  (Rus- 
sian style,  December  30, 1898),  Count  Mouravieff  issued  a 
second  rescript  or  circular,  suggesting  a  programme  of 
subjects  to  be  discussed  by  the  conference ;  [and,  finally, 
after  more  correspondence  between  the  governments,  an 
invitation  was  sent  out  on  April  7  for  the  conference  to 
assemble  May  18  at  The  Hague. \ 

b.    THE    CONFERENCE    OF    1907 

The  first  conference  in  1899  had  met  with  such  great 
success  that  it  seemed  most  desirable  that  another  confer- 
ence should  speedily  be  held  to  accomplish  the  work  which 
the  first  one  had  left  undone.     But  two  terrible  wars,  the 


4  THE   TWO   HAGUE   CONFERENCES 

Anglo-Boer  and  the  Russo-Japanese,  burst  upon  the  world 
and  shattered  for  a  time  all  hope  of  another  Peace  Confer- 
ence between  the  nations.  The  first  conference,  how- 
ever, had  shown  what  could  be  done,  and  peace  men  every- 
where were  determined  that  another  should  be  called  at  the 
first  opportunity.  In  September,  1904,  when  the  Russo- 
Japanese  War  was  running  its  course,  the  Interparlia- 
mentary Union  was  holding  its  annual  meeting  in  the  city 
of  St.  Louis,  Missouri.  This  Union  is  a  very  influential 
association,  its  members  being  the  delegates  elected  by  the 
people  to  represent  them  in  the  Congress  of  the  United 
States,  the  Parliament  of  Great  Britain  and  Ireland,  in  all 
the  congresses  of  the  American  Republics  and  (with  two 
exceptions)  in  all  the  parliaments  of  Europe.  Its  object 
is  to  promote  the  spirit  of  peace  and  friendliness  among  all 
the  lawmakers  of  the  world,  and,  by  holding  its  meetings 
in  each  of  the  countries  in  turn,  to  arouse  among  the  peo- 
ples themselves  a  genuine  love  of  international  peace.  The 
meeting  which  it  held  in  1896  in  Buda-Pesth,  Hungary,  so 
greatly  impressed  one  of  the  Czar's  ministers,  M.  Basily, 
that  he  at  once  began  to  advocate  in  Russia  the  reduction 
of  armaments.  In  this  and  in  various  other  ways,  the 
Interparliamentary  Union  helped  greatly,  though  indirectly, 
to  bring  about  the  meeting  of  the  first  conference  at  The 
Hague.  The  calling  together  of  the  second  conference 
was  due  directly  to  its  initiative.  At  its  session  in  St. 
Louis,  in  1904,  Mr.  Richard  Bartholdt,  Member  of  Con- 
gress from  Missouri  and  founder  of  the  American  Group 
of  the  Interparliamentary  Union,  proposed  a  resolution 
requesting  the  governments  of  all  the  world  to  send  dele- 
gates to  a  second  international  conference.  The  Union 
adopted  this  resolution  unanimously,  and  sent  a  deputation 


ORIGIN  5 

of  two  hundred  of  its  members  to  Washington  to  request 
President  Roosevelt  to  convoke  the  conference. 

The  President  received  the  deputation  most  cordially 
and  promised  to  comply  with  their  request.  In  October 
of  1904,  Secretary  of  State  John  Hay,  by  the  President's 
orders,  published  a  circular  discussing  the  work  of  the  pro- 
posed conference  and  suggesting  The  Hague  as  its  place  of 
meeting.  But  the  Russo-Japanese  War  was  still  raging,  and 
the  great  powers  did  not  think  that  the  right  time  for  hold- 
ing the  conference  had  arrived.  When  the  war  had  been 
ended  by  the  Treaty  of  Portsmouth,  New  Hampshire,  in 
September,  1905,  —  a  treaty  concluded  largely  through 
President  Roosevelt's  aid,  —  the  Czar  instructed  his  am- 
bassador in  Washington  to  communicate  to  the  President 
the  Czar's  desire  to  convoke  a  second  conference  at  The 
Hague,  and  to  inquire  if  the  President  would  be  willing  to 
relinquish  the  honor  of  calling  the  second  one  to  the  Czar, 
who  had  summoned  the  first.  President  Roosevelt  ex- 
pressed himself  as  delighted  with  this  arrangement,  and 
after  the  necessary  diplomatic  correspondence  the  Russian 
government  issued  its  invitation  to  the  nations  and  its 
programme  of  topics.  This  was  in  April,  1906 ;  but  as  the 
American  Republics  had  decided  to  hold  the  third  of  their 
Pan-American  Conferences  at  Rio  Janeiro  in  that  year, 
the  Hague  Conference  was  postponed  until  1907.  In  the 
spring  of  this  year,  the  Russian  government  renewed  its 
invitation,  and  it  was  finally  decided  that  the  conference 
should  assemble  on  the  fifteenth  of  June  at  The  Hague. 


II.    PLACE   OF   MEETING 
a.    THE   CONFERENCE   OF    1899 

In  Count  Mouravieff's  second  circular  of  January  n, 
1899  (Russian  style,  December  30,  1898),  it  was  stated  that 
the  Czar  considered  it  "advisable  that  the  conference  should 
not  sit  in  the  capital  of  one  of  the  Great  Powers,  where  so 
many  political  interests  are  centered,  as  this  might  impede 
the  progress  of  a  work  in  which  all  the  countries  of  the  uni- 
verse are  equally  interested."  One  month  later  the  invited 
governments  were  informed  that  the  Queen  of  the  Nether- 
lands had  expressed  her  assent  to  the  conference  being  held 
in  her  residence  city,  The  Hague.1  And  it  was,  accord- 
ingly, the  Netherlands  minister  of  foreign  affairs  who, 
accepting  Russia's  list  of  invited  guests,  extended  on 
April  7,  1899,  a  formal  invitation  to  the  governments  to 
send  their  delegates  to  meet  at  The  Hague. 

For  several  reasons,  the  choice  of  this  city  as  the  meet- 
ing place  of  the  conference  was  a  happy  one.  On  the 
eastern  coast  of  the  Atlantic  Ocean,  it  was  readily  acces- 
sible to  the  twenty  European  countries  represented  in  the 
conference  ;  while  it  could  be  reached  from  the  four  Asiatic 
and  two  American  countries  without  the  necessity  of  long 
land  journeys  being  taken  after  the  ocean  voyages  were 

1  The  Hague,  strictly  speaking,  is  not  the  capital  of  the  Kingdom  of  the 
Netherlands,  although  it  is  the  seat  of  the  national  legislature,  judiciary  and 
executive;  but  as  the  Queen  resides  here  during  most  of  the  year,  it  is  called 
the  residence  city,  "De  Residentie." 

6 


PLACE    OF   MEETING  7 

accomplished.  As  its  country  is  one  of  the  smallest,  in 
population  and  area,  it  was  free  from  the  political  objec- 
tions referred  to  in  the  Russian  circular ;  while  its  many 
comforts  and  conveniences  of  daily  life,  its  cleanliness, 
good  government,  and  great  beauty  made  it  peculiarly  fitted 
for  the  accommodation  of  strangers  from  many  lands. 
The  people  of  the  Netherlands  have  rightly  judged,  as 
their  minister  of  foreign  affairs  said  in  his  closing  speech 
to  the  conference,  that  its  sessions  will  remain  forever 
a  bright  spot  in  the  history  of  their  country,  because  they 
are  firmly  convinced  that  it  opened  a  new  era  in  the  history 
of  international  relations  between  civilized  peoples. 

The  Queen,  to  mark  her  appreciation  of  the  honor  con- 
ferred upon  her  country  and  of  the  historic  significance  of 
the  conference,  placed  at  its  disposal  the  most  beautiful 
historical  building  in  the  land.  This  was  the  far-famed 
House  in  the  Woods  ("Huis  ten  Bosch")  formerly  the 
summer  residence  of  the  royal  family,  situated  about  one 
mile  from  the  city  in  the  midst  of  a  park  whose  noble  trees 
and  vistas  have  no  superior  in  Europe.  Here  the  confer- 
ence held  its  sessions  in  the  ballroom,  known  as  the 
Oranje  Zaal,  and  decorated  with  mural  paintings  by  some 
of  Holland's  best  artists.  One  of  these  paintings  was 
considered  —  like  the  rising  sun  painted  behind  George 
Washington's  chair  in  Independence  Hall  when  the 
United  States  Constitution  was  adopted  —  to  be  of  good 
omen ;  it  was  an  allegorical  representation  of  the  Peace  of 
Westphalia,  which  put  an  end  to  the  terrible  Thirty  Years' 
War,  and  pictured  Peace  entering  the  Oranje  Zaal  for  the 
purpose  of  closing  the  doors  of  the  Temple  of  Janus, 
whence  issue,  according  to  the  old  Roman  legend,  the 
"dogs  of  war." 


8  THE   TWO   HAGUE   CONFERENCES 

Some  rooms  adjoining  the  Oranje  Zaal  were  also  thrown 
open  for  the  use  of  the  conference  committees,  and  in  one 
of  them  the  Netherlands  government  served  lunch  daily 
for  the  members.  The  members  lived,  of  course,  in  hotels 
in  The  Hague  and  went  out  to  the  House  in  the  Woods 
by  carriage,  by  tram,  or  on  foot. 

b.   THE   CONFERENCE    OF    1907 

When  Secretary  Hay  published  President  Roosevelt's 
call  for  a  second  conference,  in  October,  1904,  he  spoke  of 
the  President's  desire  that  the  conference  should  meet  at 
The  Hague,  and  of  his  "desire  and  hope  that  remembrances 
of  The  Hague  as  the  cradle  of  the  beneficent  work  com- 
menced in  1899  may  be  revived  by  the  fact  that  a  new  con- 
ference will  meet  in  that  historic  city."  Thus,  not  only 
for  the  sake  of  The  Hague,  or  of  the  conference  and  its 
members,  but  in  order  to  strengthen  the  work  of  the  first 
conference,  it  seemed  natural  and  right  that  the  second 
should  meet  in  the  same  city.  The  Czar  shared  this 
opinion,  and  the  Queen  and  people  of  the  Netherlands 
were  more  than  willing  to  be  the  hosts  of  the  conference 
again. 

But  as  the  delegates  to  the  second  conference  were  to  be 
more  than  twice  as  many  as  attended  the  first,  the  Oranje 
Zaal  in  the  House  in  the  Woods  would  be  too  small  for 
their  meetings,  and  it  might  become  inconvenient  for  so 
many  to  make  the  journey  to  it.  For  these  reasons  the 
Netherlands  government  had  fitted  up  for  the  use  of  the 
second  conference  an  old  historic  building  in  the  heart  of 
the  city.  This  was  the  Hall  of  the  Knights  ("De  Ridder- 
zaal"),  a  thirteenth  century  castle,  built  for  the  Counts  of 


PLACE   OF   MEETING  g 

Holland,  who  used  it  chiefly  during  their  hunting  expedi- 
tions to  the  North  Sea  marshes.  Its  great  banqueting 
room,  where  the  counts  made  merry  with  their  knights, 
was  restored  in  1900,  and  has  been  used  annually  since 
1902  for  the  joint  meetings  of  the  Upper  and  Lower  Houses 
which  form  the  States  General  of  the  Netherlands.  The. 
conference  used  this  room  for  its  large  meetings,  and  its 
various  committees  found  smaller  rooms  near  by.  The 
Hall  stands  in  the  "Binnenhof,"  the  old  fortress  of  the 
city,  and  in  and  around  it  have  occurred  many  historic 
events  in  connection  with  the  County  of  Holland  and  the 
Republic  and  Kingdom  of  the  Netherlands. 


III.    MEMBERS 
a.   THE   CONFERENCE   OF    1899 

The  question  as  to  which  governments  should  be  invited 
to  send  representatives  to  the  conference  of  the  nations  had 
considerable  political  importance  in  several  cases,  for  in 
answering  it  there  was  danger  that  an  invitation  to  some 
small  powers  which  claimed  complete  sovereignty  for 
themselves  would  irreparably  offend  the  great  powers 
which  claimed  rights  of  sovereignty  over  them. 

The  Russian  government  answered  this  delicate  question 
by  determining  to  invite  only  those  governments  that  were 
represented  by  diplomatic  agents  at  St.  Petersburg.  This 
general  rule  was  not  observed,  however,  in  some  notable 
instances,  both  in  extending  the  invitation  to  some  powers 
not  represented  at  the  Russian  Court  (for  example,  Luxem- 
burg, Montenegro,  and  Siam),  and  in  withholding  it  from 
some  others  which  were  so  represented  (for  example,  the 
South  African  Republic).  The  Russian  government  did 
not  offer  any  official  statement  of  the  reasons  for  its  inclu- 
sions and  exclusions;  but  it  is  generally  admitted  that  it 
exercised  its  discretion  in  extending  the  invitations  in  a  wise 
and  clever  manner. 

Twenty-six  of  the  world's  fifty-nine  governments  claim- 
ing independent  sovereignty  were  represented  at  the  con- 
ference ;  twenty  of  these  were  European,  four  were  Asiatic, 
and  two  were  American.     The  three  European  powers 


MEMBERS  1 1 

not  represented,  or  invited,  were  Monaco  (a  principality, 
with  eight  square  miles  of  territory  and  about  15,000  in- 
habitants), the  Republic  of  San  Marino  (with  thirty-eight 
square  miles  of  territory  and  11,000  inhabitants),  and  the 
Roman  Papacy.  The  Queen  of  the  Netherlands  informed 
the  Pope  of  the  proposed  conference,  and  asked  for  it  his 
sympathy  and  moral  support;  and  Pope  Leo  XIII  re- 
plied, expressing  his  "keen  sympathy  for  its  eminently 
moral  and  beneficent  object."  The  independent  Princi- 
pality of  Montenegro,  although  invited  to  send  delegates 
of  its  own,  requested  the  representatives  of  Russia  to  act  for 
it.  The  Principality  of  Bulgaria,  although  it  is  tributary 
to  the  Sultan  of  Turkey,  received  Turkey's  sanction  to  send 
delegates  of  its  own ;  but  these  delegates  were  required  to 
sit  behind  the  Sultan's  delegates  and  inscribe  their  names 
in  all  official  documents  after  the  names  of  his  delegates. 

Of  Asia's  nine  powers  claiming  independent  sovereignty, 
China,  Japan,  Persia,  and  Siam  were  represented ;  the 
other  five,  as  well  as  the  great  populations  under  the 
domination  of  some  other  power,  were  not  invited. 

Africa  sent  no  representatives  from  her  six  powers  claim- 
ing sovereignty,  since,  for  various  reasons,  none  of  them 
were  invited  to  do  so.  This  omission  was  widely  com- 
mented upon  in  the  case  of  the  South  African  Republic 
and  the  Orange  Free  State,  both  of  which  have  since  been 
incorporated  in  the  British  Empire. 

Of  America's  twenty-one  republics,  only  two,  the  United 
States  and  Mexico,  sent  representatives.  Two  of  the 
others  were  invited  to  do  so ;  but  Brazil  replied  that  it  had 
no  permanent  army  worth  mentioning;  and  it  was  not 
publicly  stated  which  of  the  other  republics  was  invited, 
or  why  it  declined  to  be  represented. 


12  THE  TWO   HAGUE  CONFERENCES 

Although  less  than  half  of  the  world's  governments  sent 
delegates  to  the  conference,  those  that  did  so  controlled  the 
resources  and  presided  over  the  political  destinies  of  three 
fourths  of  the  human  race.  Hence  it  was  rightly  called  the 
nearest  approach  in  the  world's  history  to  the  Parliament 
of  Man,  the  Federation  of  the  World. 

The  delegates  numbered  just  one  hundred,  some  of  these 
being  technical  or  scientific  experts,  while  the  majority  were 
diplomatists,  statesmen,  and  publicists.  From  one  to  eight 
delegates  were  sent  by  each  government,  but  each  delega- 
tion, large  or  small,  and  representing  a  weak  or  a  strong 
power,  had  only  one  vote.  This  recognition  of  the  au- 
tonomy and  equality  of  states  is  an  interesting  illustration 
of  state  sovereignty  and  international  democracy^ 

As  in  all  international  assemblies,  however,  in  spite  of 
the  theory  of  international  equality,  the  influence  of  the 
great  powers  and  of  great  personalities  was  a  striking  fact. 
In  arranging  the  seats  of  the  delegates,  the  alphabetical 
list  of  the  countries,  according  to  their  names  in  the  French 
language,  was  followed ;  and  this  arrangement  brought  all 
of  the  great  powers  to  the  front,  —  the  Russians,  as  initia- 
tors of  the  conference,  being  seated  around  the  president, 
who  was  also  a  Russian.  The  French  name  for  the  United 
States  {Etats  Unis  d'Amerique)  would  have  placed  its  rep- 
resentatives seventh  on  the  list;  but  either  because  this 
arrangement  would  have  seated  its  delegates  next  to  those 
of  Spain  (Espagne),  with  whom  it  had  recently  been  at  war, 
or  because  of  its  commanding  position  in  the  New  World, 
it  was  classed  as  Amerique,  second  on  the  list,  and  just 
after  Germany  (Allemagne).  The  United  States  and  Great 
Britain  did  a  great  deal  of  work  together  in  the  conference  ; 
and  the  dual  alliance  of  France  and  Russia,  and  the  triple 


MEMBERS 


13 


alliance  of  Germany,  Austria,  and  Italy,  also  made  their 
influence  felt  in  various  phases  of  its  work. 

Among  the  individuals  who  were  most  prominent  and 
influential  in  the  conference  may  be  mentioned :  Andrew 
D.  White  and  Frederick  W.  Holls,  of  the  United  States; 
Sir  Julian  Pauncefote,  of  Great  Britain ;  Leon  Bourgeois 
and  Baron  d'Estournelles  de  Constant,  of  France ;  Count 
Miinster  and  Professor  Zorn,  of  Germany;  Auguste 
Beernaert  and  Chevalier  Descamps,  of  Belgium;  Count 
Nigra,  of  Italy ;  Professor  de  Martens  and  Baron  de  Staal, 
of  Russia;  A.  P.  C.  van  Karnebeek  and  T.  M.  C.  Asser, 
of  the  Netherlands;  and  M.  Eyschen,  of  Luxemburg. 
It  may  seem  invidious  to  mention  these  fifteen  individuals 
in  a.body  of  one  hundred,  so  many  more  of  whom  were  men 
of  remarkable  abilities;  but  circumstances,  as  well  as 
abilities,  united  to  give  to  these  men  the  opportunity  of 
exerting  a  definite  and  powerful  influence  on  the  confer- 
ence, as  may  be  seen  from  the  account  of  its  work. 

b.   THE   CONFERENCE   OF  1907 

The  absence,  from  the  first  conference,  of  delegates  from 
the  republics  of  South  and  Central  America  was  regretted 
for  various  reasons  by  the  United  States  and  Mexico,  upon 
whom  devolved  the  duty  of  defending  the  peculiar  interests 
of  the  New  World ;  while  the  Latin  Republics  themselves 
soon  found  that  questions  in  which  they  were  gravely  inter- 
ested had  been  discussed  at  the  first  conference,  and 
were  to  be  discussed  at  the  second.  Partly  because  of 
these  facts,  and  partly  in  recognition  of  President  Roose- 
velt's aid  in  convoking  the  second  conference,  as  well  as 
because  of  the  desirability  that  all  independent  nations 


14 


THE   TWO   HAGUE   CONFERENCES 


should  subscribe  to  the  work  of  1899  and  participate  in  the 
discussions  of  1907,  it  was  decided  that  to  this  conference 
all  of  the  Latin  Republics  should  be  invited.  This  in- 
creased the  American  governments  at  the  conference  from 
two  to  nineteen.  The  other  two,  Honduras  and  Costa 
Rica,  were  also  invited,  and  they  appointed  delegates  who 
came  to  The  Hague  but  did  not  take  their  seats.  Two 
seats  were  reserved  for  the  delegates  from  Honduras,  but 
apparently  because  of  the  difficulty  of  deciding  at  the  time 
that  the  appointees  represented  a  de  facto  government,  its 
delegates  were  not  seated ;  while  Costa  Rica  was  not  named 
on  the  official  list  of  the  countries  represented,  and  no  seat 
was  reserved  for  its  delegate. 

The  large  addition  to  the  American  ranks  had  veryjm- 
portant  consequences,  as  will  be  seen,  to  the  work  of  the 
second  conference ;  and  at  its  second  session  the  delegates 
of  the  Latin  Republics  of  the  New  World  gave  in  their  ad- 
hesion to  the  acts  of  the  Conference  of  1899. 

Africa  remained  unrepresented,  as  before ;  while  two  of 
its  governments,  claiming  independent  sovereignty  in  1899, 
had  been  replaced  by  that  of  Great  Britain. 

Asia  was  represented  by  the  four  governments  of  1899; 
and  a  determined  but  unsuccessful  effort  for  admission 
on  the  part  of  Corea  was  followed  by  its  practical  absorp- 
tion by  Japan. 

The  twenty  governments  of  Europe  were  represented  as 
before,  with  the  addition  of  Norway,  which  had  recently 
separated  wholly  from  Sweden.  Montenegro  followed  its 
precedent  of  1899  by  requesting  Russia's  representatives 
to  act  for  it ;  but  Bulgaria,  again  permitted  by  Turkey  to 
send  delegates,  was  ranked  in  seats  and  signatures  inde- 
pendently of  her  suzerain. 


MEMBERS  15 

It  is  seen,  then,  that  of  the  world's  fifty-seven  powers 
claiming  sovereignty  in  1907,  forty-four  sent  delegates  to 
the  conference;  and  that  a  still  larger  proportion  of  its 
peoples  and  resources  were  represented  in  it.  Thus  it 
was  believed  to  mark  another  long  stride  towards  the  "Par- 
liament of  Man"  dreamed  of  by  the  poets  and  prophesied 
by  the  seers. 

With  the  number  of  countries  represented  nearly  doubled, 
the  number  of  delegates  was  more  than  doubled,  being  in 
the  second  conference  two  hundred  and  fifty-six.  The 
number  sent  by  each  country  varied  from  one  to  fifteen, 
but  as  before  each  delegation  had  only  one  vote.  The  seats 
were  again  arranged  in  alphabetical  order  according  to 
the  French  names  of  the  countries,  and  the  United  States 
was  again  ranked  as  Amerique.  The  grouping  of  the  seats 
was  different  in  several  of  the  plenary  sessions,  but  each 
time  the  alphabet  favored  the  large  powers  by  bringing 
their  delegates  to  the  front.  And  it  was  observed  with  in- 
terest that  at  the  first  and  second  plenary  sessions  the 
Americans  and  Spaniards,  and  the  Russians  and  Japanese, 
sat  side  by  side  with  only  a  narrow  aisle  between.  At  the 
third  session  the  Americans  and  Germans  sat  on  either  side 
of  the  president,  facing  the  other  delegates;  and  at  the 
later  sessions  the  Germans,  Americans,  and  British  occu- 
pied the  first  rows  of  seats,  —  still  in  alphabetical  order. 

Among  the  leaders  of  the  conference  should  be  men- 
tioned first  Joseph  H.  Choate  and  General  Horace  Porter, 
of  the  United  States;  Baron  Marschall  von  Bieberstein,  of 
Germany;  Sir  Edward  Fry  and  Captain  C.  L.  Ottley,  of 
Great  Britain;  Dr.  Drago,  of  Argentina;  M.  Beernaert, 
of  Belgium;  Ruy  Barbosa,  of  Brazil;  Leon  Bourgeois, 
Baron  d'Estournelles  de  Constant  and  Professor  Renault, 


1 6  THE  TWO   HAGUE   CONFERENCES 

of  France;  Count  Torniclli,  of  Italy;  Francis  Hagerup, 
of  Norway ;  General  den  Beer  Poortugael,  of  Holland ; 
Marquis  de  Soveral,  of  Portugal ;  and  Professor  de  Mar- 
tens and  M.  Nelidow,  of  Russia.1 

1  These  names  are  mentioned,  not  in  order  of  importance,  but  in  the  alpha- 
betical order  of  the  countries  represented. 


IV.    FESTIVITIES   AND    CEREMONIES 
a.   THE   CONFERENCE    OF   1899 

The  importance  of  hospitality  in  private  and  public  life 
is  a  matter  of  common  observation  and  of  historic  record. 
It  played  its  part,  too,  in  the  conferences  at  The  Hague. 
One  of  the  delegates  to  the  first  conference  remarked : 

"Do  you  want  to  know  a  secret  by  means  of  which  we  triumphed 
over  many  difficulties  during  this  conference?  In  our  delegation, 
when  we  foresaw  some  cloud  on  the  horizon,  we  invited  to  dinner  those 
whom  we  thought  most  likely  to  be  opposed  to  what  we  considered  the 
best  solution  of  the  problem,  and,  in  friendly  talks  around  the  table, 
difficulties  were  smoothed  away  which  would  have  been  insurmount- 
able if  their  disposition  had  been  left  to  a  committee  or  a  commis- 
sion." 

This  secret  was  shared  by  most  of  the  delegations,  and 
dinners  and  lunches  were  given  and  received,  not  only  for 
the  purpose  of  smoothing  away  the  difficulties  of  the  con- 
ference itself,  but  to  create  or  to  strengthen  the  diplomatic 
ties  of  international  alliances. 

The  official  society  of  The  Hague  vied  with  the  visiting 
strangers'  hospitality  in  giving  receptions,  balls,  and  ban- 
quets. The  city  of  The  Hague  gave  a  concert ;  Haarlem, 
a  great  floral  and  equestrian  fete  ;  Schevcningen,  a  concert 
and  ball ;  the  government  of  the  Netherlands,  besides  serv- 
ing a  daily  luncheon  to  the  delegates  at  the  House  in  the 
Woods,  gave  in  their  honor  a  musical  and  artistic  festival, 

*7 


18  THE   TWO   HAGUE   CONFERENCES 

the  climax  of  which  was  a  series  of  national  dances  illus- 
trating the  costumes  of  the  various  provinces ;  the  Queen 
and  Queen  Mother  gave  a  soiree  at  the  Palace  in  The  Hague 
and  a  state  dinner  at  the  Palace  in  Amsterdam. 

The  most  interesting,  historically,  of  the  unofhcfal  cere- 
monies of  the  conference  was  the  celebration  of  the  Fourth 
of  July  by  the  American  delegates,  who  invited  the  members 
of  the  conference  to  be  their  guests  on  that  occasion  at 
Delft.  Here,  in  the  Great  Church,  Ambassador  White,  in 
the  name  of  the  United  States,  placed  a  silver  wreath  upon 
the  tomb  of  Hugo  Grotius,  the  founder  of  International 
Law,  and  made  a  noteworthy  address.  Other  short  but 
impressive  addresses  were  made  by  Seth  Low,  of  New 
York,  and  by  eminent  jurists  of  the  Netherlands ;  and  the 
ceremonies  in  the  church  were  followed  by  a  luncheon 
given  by  the  American  delegates  to  their  three  hundred  and 
thirty  guests  in  the  Town  Hall. 

b.   THE   CONFERENCE   OF  1907 

The  second  conference  attached  quite  as  much  impor- 
tance as  the  first  to  social  amenities.  The  South  American 
delegations,  in  particular,  vied  with  each  other,  and  with  cer- 
tain delegations  of  the  Old  World,  in  proffering  hospitality. 
One  of  the  most  magnificent  and  largest  of  all  the  recep- 
tions was  given  by  the  American  minister  and  delegate, 
Dr.  David  J.  Hill,  in  the  Hotel  des  Indes,  on  the  Fourth  of 
July.  The  Netherlands  government,  although  it  did  not 
attempt  to  invite  the  many  delegates  to  a  daily  luncheon 
as  in  1899,  did  all  that  it  could  to  promote  the  comfort  and 
pleasure  of  its  guests  during  their  prolonged  stay  through- 
out an  exceptionally  cool  summer. 


FESTIVITIES   AND   CEREMONIES  19 

The  Queen  received  all  the  delegates  at  the  Palace  in 
The  Hague,  and  gave  a  state  dinner  to  the  delegates  in 
chief  at  the  Palace  in  Amsterdam.  The  city  of  The  Hague 
gave  a  musical  and  artistic  festival,  whose  chief  feature  was 
the  national  dances  in  provincial  costumes.  The  Nether- 
lands government  gave  an  excursion  on  the  New  Waterway, 
the  new  and  superb  entrance  from  the  North  Sea  to  Rot- 
terdam ;  in  the  course  of  this  excursion  the  small  towns  along 
the  way  were  decorated  with  the  flags  of  all  nations  and  re- 
ceived the  guests  with  speeches  from  their  burgomasters,  the 
music  of  orchestras,  and  the  singing  of  national  songs  by 
hundreds  of  school  children ;  an  international  yacht  race 
was  held  on  the  Maas  River  as  the  excursion  boats  steamed 
along ;  all  the  many  large  ship  canals  of  Rotterdam  were 
traversed ;  and  a  garden  party  was  given  at  the  end  of  the 
trip  in  the  park  in  Rotterdam. 

The  most  imposing  and  important  public  ceremony  of 
the  second  conference  was  the  laying  of  the  "first  stone" 
of  the  Palace  of  Peace.  This  occurred  on  the  afternoon  of 
July  30,  in  the  presence  of  all  the  delegates  and  many  other 
invited  guests.  Andrew  Carnegie,  a  distinguished  citizen 
of  the  United  States,  had  presented  to  the  Netherlands 
government  the  sum  of  one  million  and  a  quarter  of  dollars 
for  the  erection  of  a  building  suitable  for  the  sessions  and  for 
the  library  of  the  International  Court  of  Arbitration  created 
by  the  first  conference ;  and  to  this  building  popular  fancy 
and  the  logic  of  events  have  already  affixed  the  name  of  the 
Palace  of  Peace.  The  Netherlands  government  provided 
a  fine  site  for  the  building  at  the  point  where  The  Hague 
is  entered  by  the  great  tree-lined  avenue  known  as  the  Old 
Scheveningen  Way;  and  the  eminent  Netherlands  stales- 
man,  Jonkheer  van  Karnebeek,  chairman  of  the  building 


20  THE   TWO   HAGUE   CONFERENCES 

committee,  delivered  the  chief  address  when  the  "first 
stone"  was  laid.  The  president  of  the  conference,  M. 
Nelidow,  of  Russia,  performed  the  ceremony  of  laying  the 
stone  and  also  delivered  a  significant  address.  At  one  of 
the  last  plenary  sessions  of  the  conference,  Baron  d'Es- 
tournelles,  of  France,  offered  a  resolution  expressive  of  the 
desire  "that  each  government  represented  at  The  Hague 
should  contribute  to  the  erection  of  the  Peace  Palace  by 
sending,  after  consultation  with  the  architect,  materials 
of  construction  and  ornamentation,  representing  the 
purest  example  of  its  national  production,  so  that  this 
Palace,  an  expression  of  universal  good  will  and  hope, 
may  be  built  of  the  very  substance  of  all  countries." 
The  Baron  presented  this  resolution  in  a  short  but  elo- 
quent speech,  which  was  greeted  with  great  applause, 
and  the  resolution  was  adopted  by  acclamation. 


V.    ORGANIZED   PUBLIC    OPINION 
a.   THE   CONFERENCE   OF  1899 

A  programme  of  topics  for  discussion  had  been  agreed 
upon  by  the  governments  before  the  conference  met,  and 
each  delegation,  of  course,  had  its  specific  instructions  from 
its  own  government.  But,  although  a  strenuous  effort 
was  made  at  first  to  keep  all  reports  of  the  debates  secret 
from  the  public,  it  was  inevitable  that  enterprising  journal- 
ists should  discover  what  was  being  said  and  done  and 
should  publish  the  facts  broadcast  in  the  daily  and  weekly 
newspapers  of  the  world;  and  it  was  equally  inevitable 
that  the  great,  incalculable  force  of  the  world's  public  opin- 
ion should  beat  upon  the  conferences  and  their  members, 
and  make  its  influence  directly  and  indirectly  felt. 

The  first  conference,  at  its  first  session,  passed  a  reso- 
lution declaring  all  meetings  of  the  conference  and  its 
committees  to  be  absolutely  secret ;  and  so  far  was  this 
carried  that  a  very  few  invited  guests  were  admitted  as 
spectators  only  on  the  opening  and  closing  days,  while 
during  all  the  other  sessions  of  both  conference  and  com- 
mittees all  outsiders  of  every  kind  were  excluded,  and  visi- 
tors were  not  even  permitted  to  inspect  the  Palace.  Not 
only  were  outsiders  thus  debarred  from  securing  and  pub- 
lishing any  account  of  the  proceedings,  but  the  conference 
itself  made  inadequate  provision  for  recording  its  transac- 
tions.    There  was  not  a  single  stenographer  among  its 


22  THE  TWO   HAGUE   CONFERENCES 

secretaries,  and  the  minutes  of  each  meeting  were  not  ver- 
batim reports,  nor  were  any  copies  of  them,  nor  any  docu- 
ments connected  with  the  proceedings,  permitted  to  be  pub- 
lished. This  secrecy  was  defended  by  some  of  the  leaders 
of  the  conference  on  the  ground  that  only  thus  could  com- 
plete freedom  of  speech  and  deliberation  be  secured.  On 
the  other  hand,  the  journalists  denounced  it  as  an  absurd 
superstition,  as  an  anachronism  dating  from  the  time 
when  the  only  international  conferences  were  gatherings 
of  royal  conspirators  plotting  the  theft  of  their  neighbors' 
lands;  and  they  urged  England's  and  America's  example 
to  show  that  only  where  complete  publicity  accompanies 
public  action  can  genuine  freedom  of  speech  or  responsi- 
bility exist.  Acting  on  this  belief,  the  journalists  present 
at  The  Hague  brought  every  possible  pressure  to  bear  upon 
individual  delegates  and  procured  in  this  way  information 
that  was  meager,  half  true,  or  wholly  false.  One  of  them 
caricatured  so  unmercifully  an  alleged  speech  of  Dr.  Zorn, 
one  of  the  German  delegates,  that  the  German  govern- 
ment, following  Bismarck's  precedent  at  the  Congress  of 
Berlin  in  1878,  made  a  formal  demand  that  some  official 
account  of  the  proceedings  should  be  given  to  the  press. 
Accordingly,  at  its  second  session,  May  20,  the  conference 
decided,  in  the  words  of  its  president,  "to  take  into  con- 
sideration the  legitimate  curiosity  of  the  public  attentive 
to  our  labors,"  and  authorized  the  president  to  communi- 
cate through  the  secretaries  to  the  press  a  summary  of  the 
proceedings  of  each  session.  These  brief  summaries  were 
largely  supplemented  by  voluntary  statements  from  indi- 
vidual delegates,  most  of  whom  came  to  see  that  secrecy 
was  impossible  and  publicity  desirable.  Indeed,  the 
majority  of  the  delegates  themselves  —  and  this  was  true 


ORGANIZED    PUBLIC   OPINION  23 

especially  of  the  second  conference  —  learned  of  the  work 
of  the  small  committees  only  from  the  information  se- 
cured through  secret  channels  by  two  or  three  enter- 
prising journalists.  And  the  great  world  outside  would 
have  known  but  little  and  probably  cared  far  less  than  it 
did  for  the  work  of  the  conference,  if  it  had  succeeded  in 
hiding  its  light  under  a  bushel  in  the  way  in  which  it  at 
first  tried  to  do.  While  the  conference  itself  would  very 
probably  have  failed  in  its  most  important  work,  the  pro- 
motion of  arbitration,  had  it  not  been  fortified  at  a  critical 
time  by  the  power  of  public  opinion. 

The  agencies  through  which  this  power  of  public  opinion 
was  organized  and  brought  to  bear  upon  the  conferences 
were  memorials  and  deputations  in  large  numbers  and  of 
many  kinds.  Cablegrams,  letters,  addresses,  even  pam- 
phlets and  books,  were  showered  upon  the  conference,  or 
upon  one  or  other  of  its  delegations,  by  individuals,  socie- 
ties and  churches.  These  contained  sympathy,  advice, 
exhortation,  command ;  and  a  few  of  them  outlined  definite 
plans  for  an  arbitration  tribunal  which  were  of  great  service 
to  the  committee  in  charge  of  that  subject.  The  chief  value 
of  these  multitudinous  communications,  however,  was  to 
convince  the  conference  that  the  peoples  of  the  civilized 
world  hoped  and  demanded  that  the  conference  should 
accomplish  something  definite  and  fruitful  for  the  preser- 
vation of  the  world's  peace. 

The  governments  behind  the  conference  came  to  share 
this  conviction,  and  it  is  related  by  Ambassador  White  that 
the  German  Chancellor,  Von  Hohenlohe,  was  largely  in- 
fluenced  by  evidences  '  of   the   popular  demand   for  an 

1  Dr.  White  mentions  particularly  the  call  of  the  Protestant  Episcopal 
Bishop  of  Texas  for  prayers  throughout  the  State  in  its  behalf. 


24 


THE   TWO   HAGUE   CONFERENCES 


arbitration  court  to  change  the  German  delegation's  in- 
structions in  regard  to  it  from  opposition  to  support. 

In  addition  to  "the  written  word"  came  many  "living 
epistles"  in  the  form  of  delegates  or  deputations  who 
sought  to  address  the  conference  or  its  various  delegations 
on  a  great  variety  of  subjects.  Especially  prominent  and 
persistent  among  these  were  the  representatives  of  the 
world's  weaker  nationalities,  such  as  the  Poles,  Finns, 
Armenians,  Macedonians,  and  Young  Turks,  who  appealed 
to  the  conference  to  aid  them  in  realizing  their  aspirations 
towards  independence  or  to  alleviate  the  miseries  of  their 
daily  life.  The  argument  which  they  brought  to  the  Peace 
Conference  was  that  permanent  peace  could  be  secured  for 
the  world  only  after  justice  had  been  procured  for  them. 
But  however  much  the  delegates  to  the  conference  might 
sympathize  with  such  aspirations  and  miseries,  the  con- 
ference itself  rightly  decided  that  it  had  no  jurisdiction  over 
such  matters.  Hence,  these  deputations,  disappointed  and 
embittered,  returned  to  their  countries,  there  to  spread  the 
belief  that  the  conference  was  a  mockery  and  a  farce,  and 
to  proceed  with  increased  vigor  to  further  the  gospel  of  revo- 
lution and  violence  as  the  only  hope  of  their  salvation. 

b.   THE   CONFERENCE   OF  1907 

Baroness  von  Suttner,  the  author  of  "  Lay  down  your 
Arms,"  who  was  present  at  The  Hague  during  the  sessions 
of  both  conferences,  engaged  in  writing  of  them  for  the 
public  press,  said  of  the  members  of  the  second  conference : 

"That  which  impresses  me  most  is  their  respectful  obedience  to  the 
desires  of  public  opinion.  If  they  oppose  a  reform,  it  is  only  because 
they  are  persuaded  that  public  opinion  is  indifferent  to  it.     If  public 


ORGANIZED   PUBLIC   OPINION  25 

opinion  should  express  itself  with  appropriate  vigor,  there  is 
nothing  the  conference  would  not  try  to  do.  The  fact  is  that  the 
delegates  are  only  the  hands  on  a  watch;  their  movements  are  gov- 
erned by  a  great  invisible  spring.  This  spring  is  public  opinion :  not 
the  private  opinion  of  individuals ;  but  public  opinion  —  opinion  ex- 
pressed, organized,  made  palpable  and  even  disagreeable  to  those  who 
oppose  it.  That  is  the  master,  and  even  the  god,  of  the  confer- 
ence." 

Within  the  conference,  too,  this  thought  was  expressed 
many  times,  perhaps  most  impressively  by  M.  Beernaert,  of 
Belgium,  one  of  the  most  influential  leaders  in  both  con- 
ferences. In  one  of  his  addresses,  M.  Beernaert  reminded 
his  colleagues  of  their  responsibility  to  public  opinion, 
"that  redoubtable  sovereign,"  and  said:  "Public  opinion 
is  listening  to  and  watching  us;  and  to-day  there  is  no 
assembly  which  must  not  sit  with  windows  opened,  lis- 
tening to  the  voices  from  outside." 

Animated  by  this  belief,  the  second  conference  made  but 
feeble  and  unsuccessful  efforts  to  keep  its  proceedings 
secret.  From  one  to  two  hundred  invited  guests  were 
present  at  all  of  the  plenary  sessions;  and  although  the 
meetings  of  its  commissions  were  attended  by  none  but 
members,  the  conference  at  its  second  session  authorized 
the  president  and  secretariat  to  publish  information  as  to 
their  work.  This  was  accordingly  done  by  the  general 
secretary  of  the  editing  committee  after  every  meeting  of  a 
commission  or  subcommission ;  and  as  at  the  first  con- 
ference, no  sooner  were  documents  printed  and  in  the 
hands  of  the  delegates  than  they  found  their  way  to  the 
daily  press.  At  one  of  the  plenary  sessions,  about  one 
month  after  the  conference  commenced,  the  president  said 
that  a  great  power  had  complained  of  the  publication  of 
certain  documents,  and  urged  the  delegates  to  keep  these 


26  THE  TWO   HAGUE   CONFERENCES 

secret ;  but  the  delegates  did  not  respond  completely  to  the 
president's  plea  and  continued  to  give  the  documents  to 
newspaper  men  as  before. 

The  journalists  at  The  Hague,  proudly  calling  themselves 
"the  ambassadors  of  the  peoples"  and  "the  fourth  estate 
of  the  conference,"  did  their  best  to  learn  the  facts  and  to 
publish  them  truthfully  as  well  as  fully.  But  it  must  be 
confessed  that  many  of  the  newspapers  unrepresented  at 
The  Hague  treated  the  second  conference  with  even  more 
ridicule  and  misrepresentation  than  they  had  done  the 
first.  The  great  majority  of  the  newspapers  and  journals, 
however,  as  well  as  the  world  of  public  opinion  were  pro- 
foundly interested  in  and  hopeful  of  the  conference,  and 
did  their  best  to  help  it  to  arrive  at  beneficial  results.  Thou- 
sands of  addresses  and  dozens  of  deputations  evinced  this 
interest  and  sought  to  realize  the  hopes  which  they  ex- 
pressed. 

Among  the  most  significant  deputations  and  addresses 
may  be  mentioned  those  from :  the  International  Council 
of  Women,  bearing  the  signatures  of  two  million  women 
living  in  twenty  different  countries;  the  Universal  Alli- 
ance of  Women  for  Peace  by  Education,  representing  nearly 
five  million  women  of  all  civilized  lands;  English,  Ameri- 
can, and  European  churches,  bearing  the  signatures  of  sixty 
archbishops  and  bishops  and  more  than  a  hundred  official 
representatives  of  non-episcopal  churches;  the  Inter- 
national Federation  of  Students;  the  students  of  the 
Netherlands, — a  branch  of  "Corda  Fratres";  twenty- 
three  colleges  in  the  Central  West  of  the  United  States, 
representing  twenty-seven  thousand  professors  and  stu- 
dents ;  a  petition  for  arbitration  bearing  two  and  a  quarter 
million  signatures,  collected  through  the  efforts  of  a  single 


ORGANIZED    PUBLIC   OPINION  27 

Boston  teacher  and  presented  by  her  to  the  president  of 
the  conference  on  the  Fourth  of  July;  two  thousand 
students  of  the  Summer  School  at  Knoxville,  Tennessee, 
who  also  cabled  their  address  to  the  conference  on  the 
Fourth  of  July;  fifteen  thousand  citizens  of  Sweden,  meet- 
ing separately  in  their  various  localities ;  the  International 
Bureau  of  Peace,  with  its  headquarters  in  Berne;  many 
peace  societies  of  the  United  States,  Great  Britain,  France, 
Portugal,  San  Marino,  and  Japan;  and  two  very  note- 
worthy peace  congresses, — that  of  April,  1907,  in  New 
York  City,  and  that  of  September,  in  Munich,  Germany. 

The  Interparliamentary  Union  was  an  effective  factor  in 
the  second  conference  as  in  the  first,  through  the  presence 
and  influence  of  presidents  and  members  of  its  various 
Groups,  and  especially  through  the  plan  of  obligatory  arbi- 
tration which  it  prepared,  which  the  Marquis  de  Soveral. 
of  Portugal,  presented  to  the  conference,  and  which  became 
the  basis  of  the  agreement  adopted  by  the  conference  for 
obligatory  arbitration. 

The  "oppressed  nationalities"  of  the  world  made  their 
voices  heard  at  the  second  conference  also,  and  with  the 
same  result  as  at  the  first,  a  reply,  namely,  that  the  con- 
ference had  no  jurisdiction  over  the  internal  affairs  of 
the  various  governments.  Among  these  deputations  and 
addresses  were  those  from  the  Albanians,  Armenians,  Bos- 
nians, Coreans,  Georgians,  and  Herzegovinians ;  and  indi- 
vidual appeals  were  received  from  Boers,  Egyptians,  and 
Irishmen.  The  Zionists',  Socialists',  and  Anarchists'  inter- 
national congresses  also  met  in  or  near  The  Hague,  dur- 
ing the  sessions  of  the  conference,  and  each  of  these  had 
its  word  of  appeal,  reproach,  or  denunciation  for  the  work 
of  the  Conference  of  Peace. 


VI.    ORGANIZATION 
a.   THE  CONFERENCE   OF  1899 

Although  the  president  of  the  conference,  Baron  de  Staal, 
of  Russia,  was  entirely  inexperienced  in  parliamentary 
government  and  law,  the  leading  delegates  from  Western 
Europe,  Great  Britain,  and  the  United  States  were  remark- 
ably well  versed  in  their  principles  and  practice ;  and  under 
their  guidance  an  excellent  organization  was  effected. 
The  first  delegates  from  the  various  governments  formed  a 
kind  of  "cabinet"  of  advisers  to  the  president,  and  within 
this  cabinet  there  existed  a  kind  of  "steering  committee," 
composed  of  the  first  delegates  from  the  seven  "great 
powers"  ;  to  these  were  added  later  the  other  leading  spirits 
of  the  conference,  and  although  they  acted  entirely  un- 
officially their  influence  was  real  and  effective. 

In  their  first  conclave  on  the  day  before  the  conference 
formally  opened  —  and  the  conference  ratified  their  deci- 
sions the  next  day  —  it  was  decided  that  on  the  basis  of 
the  three  main  topics  proposed  for  discussion  in  the  Rus- 
sian Programme  the  conference  should  be  divided  into 
three  main  "commissions."  These  were:  I  Commission, 
in  charge  of  the  question  of  armaments  and  the  use  of 
new  kinds  of  implements  of  warfare ; !  II  Commission, 
in  charge  of  the  laws  and  customs  of  warfare ; 2  III  Com- 

1  Articles  i  to  4  of  the  Russian  Programme ;  see  later,  page  45. 

2  Articles  5  to  7  of  the  Russian  Programme. 

28 


ORGANIZATION  29 

mission,  in  charge  of  arbitration  and  other  means  of  pre- 
venting warfare  between  nations.1 

The  I  and  II  Commissions  were  each  subdivided  into 
two  subcommissions  dealing  with  military  and  with  naval 
matters  respectively;  and  the  III  Commission  appointed 
a  single  "committee  of  examination,"  to  report  upon  the 
various  plans  of  arbitration  submitted  to  it.  Thus,  the 
various  organs  of  the  conference  were  as  follows :  the  Con- 
ference itself,  which  gave  formal  ratification  to  the  pro- 
posals adopted  by  the  commissions;  the  I,  II,  and  III 
Commissions,  which  considered  the  reports  of  their  sub- 
commissions;  and  the  five  subcommissions,  which  did 
the  difficult,  constructive  work  of  the  conference.  In 
addition  to  these  bodies  there  were  also  the  Commission 
on  Petitions,  in  charge  of  the  various  memorials  sent  to 
the  conference,  and  the  Commission  on  Editing,  appointed 
near  the  end  of  the  conference  to  edit  the  "conventions," 
or  treaties  agreed  upon. 

The  various  subdivisions  of  the  conference  having  been 
determined,  the  method  of  procedure  was  very  simple.  In 
each  subcommission  'the  Russian  members  would  explain 
the  proposal  of  their  government  on  the  point  in  question ; 
the  subcommission,  in  its  subsequent  meetings,  would 
reject,  accept,  or  amend  these  proposals;  a  "reporter" 
appointed  at  the  first  session  of  the  subcommission  would 
then  present  his  report  of  the  decisions  made  by  the  sub- 
commission,  which  would  accept  or  amend  his  report; 
this  amended  report  would  then  be  discussed  in  a  reunion 
of  the  commission  concerned ;  and  the  commission's  final 
report  would  be  presented  in  a  plenary  session  of  the  con- 
ference itself  which  would  order  its  incorporation  in  the 

1  Article  8  of  the  Russian  Programme. 


30  THE   TWO   HAGUE   CONFERENCES 

definitive  agreements.  But  even  after  having  run  the 
gauntlet  of  the  subcommission,  commission,  and  confer- 
ence, some  of  the  delegations  would  not  accept  in  their 
governments'  names  some  of  the  proposals  agreed  upon ; 
and  some  of  the  proposals  recommended  by  delegations 
to  their  governments  have  not  yet  been  adopted  by 
them.1 

Each  state  had  the  right  of  being  represented  on  each  of 
the  commissions,  and  it  was  left  to  the  delegations,  or  the 
first  delegates,  to  decide  which  of  their  members  should  be- 
come members  of  the  various  commissions ;  but  in  the  com- 
missions, as  in  the  conference,  each  state  had  only  one  vote. 
The  membership  of  the  first  three  commissions  was  50, 
67,  and  59,  respectively;  and  the  countries  were  repre- 
sented on  them  by  from  one  to  six  members  each,  Russia 
having,  in  all  three  cases,  the  largest  number.  The  Com- 
mission on  Petitions  numbered  fifteen  members,  and  that 
on  Editing  four. 

The  distribution  of  the  offices  was  both  an  important  and 
a  delicate  task;  but  the  choice  of  the  really  important  offi- 
cials proved  to  have  been  most  wise  and  successful,  while 
the  creation  of  a  number  of  honorary  offices  prevented  in- 
ternational jealousies.  The  important  offices  were  those 
of  the  president  of  the  conference,  and  the  three  presi- 
dents of  the  first  three  commissions.  The  honorary  offices 
were  those  of  the  honorary  president  and  vice  president 
of  the  conference,  the  two  adjunct  and  seven  honorary 
presidents  of  the  commissions,  and  the  sixteen  vice  presi- 
dents 2  of  the  subcommissions. 

1  This  fact  will  be  adverted  to  again  in  the  XIV  section  of  this  book, 
entitled,  "A  Summary  of  Results." 

2  Six  of  these  were  really  vice  presidents  of  the  III  Commission,  which 
did  not  divide  into  subcommissions. 


ORGANIZATION  3 1 

The  initiator  of  the  conference  having  been  Russia,  its 
first  delegate,  Baron  de  Staal,  was  made  president  of  the 
conference;  and  three  eminent  European  statesmen  and 
jurists,  Beernaert  of  Belgium,  De  Martens  of  Russia,  and 
Bourgeois  of  France,  were  made  presidents  of  the  first 
three  commissions.  Upon  these  four  men  and  the  ten 
secretaries  1  devolved  the  administrative  work  of  the  con- 
ference ;  but  in  all  important  matters  they  were  advised  by 
the  "cabinet"  and  the  "steering  committee"  mentioned 
above. 

The  twenty-seven  honorary  offices  were  distributed 
among  thirteen  of  the  twenty-six  countries  represented. 
The  Netherlands,  as  the  host  of  the  conference,  was  given 
the  first  two  honorary  offices,  its  minister  of  foreign  affairs 
being  appointed  honorary  president,  and  its  first  delegate 
vice  president,  of  the  conference.  The  Netherlands  re- 
ceived two  more  of  the  honorary  offices,  as  did  also  Austria 
and  Turkey;  Germany  received  four;  Great  Britain, 
France,  and  Italy,  three  each;  six  other  countries 2  received 
one  each. 

b.   THE   CONFERENCE   OF  1907 

The  second  conference  followed  very  closely  the  wise 
precedents  set  by  the  first  in  regard  to  organization. 
A  "cabinet"  of  first  delegates  was  not  again  necessary, 
and,  with  forty-four  governments  represented,  such  a  cabi- 
net would  have  proved  unwieldy.  But  an  "inner  circle," 
or  "steering  committee,"  of  a  comparatively  few  leading 

1  The  secretaries  were  not  delegates  to  the  conference,  but  were  appointed 
from  four  different  countries:  six  from  the  Netherlands,  two  from  France,  one 
from  Russia,  and  one  from  Belgium. 

2  The  United  States,  Spain,  Portugal,  Sweden  and  Norway,  Denmark, 
and  Switzerland. 


32  THE   TWO   HAGUE   CONFERENCES 

spirits,  chiefly  delegates  from  the  "  great  powers,"  made 
their  preponderating  influence  felt  at  critical  times. 

This  conference,  too,  was  divided  into  commissions, 
subcommissions,  and  committees  of  examination.  The 
commissions  were  six  in  number,  namely:  Commissions 
I,  II,  III,  and  IV,  the  Commission  on  Petitions,  and  the 
Commission  on  Editing.  The  I  Commission,  usually  called 
the  Arbitration  Commission,  was  divided  into  two  sub- 
commissions  :  the  first,  with  103  members,  having  to  con- 
sider the  various  plans  of  arbitration  and  prevention  of 
warfare;  the  second,  with  89  members,  having  to  do  with 
maritime  prizes. 

The  II  Commission,  usually  called  the  Commission  of 
War  on  Land,  was  divided  into  two  subcommissions :  the 
first,  with  79  members,  dealing  with  the  laws  and  customs 
of  war  on  land ;  the  second,  with  82  members,  having  to 
consider  the  rights  and  duties  of  neutrals  on  land  and 
the  declaration  of  war. 

The  III  Commission,  usually  called  the  Commission  of 
War  on  Sea,  was  divided  into  two  subcommissions:  the 
first,  with  73  members,  having  to  consider  the  bombard- 
ment of  ports  and  the  use  of  submarine  mines  and  torpe- 
does; the  second,  with  82  members,  having  to  do  with  the 
conduct  of  belligerent  ships  in  neutral  ports,  and  with  the 
application  of  the  Geneva  Convention  to  maritime  warfare. 

The  IV  Commission,  usually  called  the  Commission  on 
Maritime  Law,  was  not  subdivided,  but  its  114  members 
discussed  together  a  number  of  questions  concerning  mari- 
time warfare  which  did  not  come  within  the  province  of 
the  III  Commission. 

The  Commission  on  Petitions,  composed  of  five  members, 
was  appointed  at  the  second  plenary  session  of  the  confer- 


ORGANIZATION  33 

ence,  on  the  19th  of  June,  and  presented  two  reports,  one 
on  the  20th  of  July,  and  one  on  the  17th  of  October. 

The  Commission  on  Editing,  composed  of  twenty-nine 
members,  was  not  appointed  until  the  20th  of  July,  and 
its  single  report  was  presented  to  the  conference  at  the 
ninth  and  tenth  plenary  sessions. 

The  procedure  was  the  same  in  the  second  conference  as 
in  the  first.  The  Russian  propositions  would  be  presented, 
explained,  and  discussed  in  a  subcommission ;  sometimes 
a  special  "committee  of  examination"  would  be  appointed 
by  a  subcommission  to  scrutinize  and  report  upon  proposi- 
tions submitted  by  various  delegations  ;  then  the  commit- 
tee's report,  or  the  report  of  the  subcommission's  "  reporter," 
would  be  discussed  and  amended;  the  commission  would 
next  pass  upon  its  subcommission's  decisions;  and  finally 
the  conference  would  formally  approve  the  recommenda- 
tions of  the  commission.  In  this  procedure  the  commis- 
sions' presidents,  reporters,  and  committees  of  examination 
fulfilled  an  important  service  in  crystallizing  the  long  dis- 
cussions of  the  subcommissions  and  commissions,  and  in 
formulating  results  for  final  action. 

In  the  distribution  of  offices,  Russia  was  again  given 
the  presidency  of  the  conference,  her  first  delegate,  M. 
Nelidow,  being  chosen  for  this  honor.  The  Netherlands 
minister  of  foreign  affairs  and  its  first  delegate  were  again 
made  honorary  president  and  vice  president  of  the  confer- 
ence. The  presidencies  of  the  first  four  commissions  went 
to  Bourgeois,1  of  France;  Beernaert,2  of  Belgium;  Tor- 

1  M.  Bourgeois  had  been  the  president  of  the  first  conference's  III  Com- 
mission, that  on  arbitration,  which  had  become  the  I  Commission  of  the 
second  conference. 

2  M.  Beernaert  had  been  the  president  of  the  first  conference's  I  Com- 
mission, that  on  armaments,  which  topic  was  not  assigned  to  a  separate 
commission  by  the  second  conference. 


34.  THE   TWO   HAGUE   CONFERENCES 

nielli,  of  Italy;  and  Martens,1  of  Russia.  In  addition  to 
these  four  presidents  of  commissions,  all  of  whom  presided 
over  one  or  two  subcommissions,  there  were  two  other 
men,  Asser  of  the  Netherlands  and  Hagerup  of  Norway, 
who  presided  over  two  subcommissions. 

Upon  the  seven  active  presidents  and  the  twenty-four 
secretaries  2  devolved  the  administrative  labors  of  the  con- 
ference, but  as  in  the  first  conference  they  were  advised  in 
all  important  matters  by  the  "inner  circle"  of  leading 
delegates. 

In  addition  to  the  honorary  offices  of  honorary  presi- 
dent and  vice  president  of  the  conference,  which  went  to 
the  Netherlands,  there  were  twenty-nine  honorary,  ad- 
junct, and  vice  presidencies,  which  were  distributed 
among  twenty-three  of  the  forty-four  countries  represented. 
Of  the  eleven  honorary  and  two  adjunct  presidencies,  the 
United  States  and  Austria  received  two  each,  and  nine 
other  countries  3  one  each.  Of  the  sixteen  vice  presiden- 
cies, four  went  to  four  of  the  above-named  countries,4 
and  the  rest  to  twelve  others.5 

1  M.  de  Martens  had  been  president  of  the  first  conference's  II  Commis- 
sion, that  on  the  laws  and  customs  of  warfare,  which  topic  was  assigned  by 
the  second  conference  to  its  II,  III,  and  IV  Commissions. 

2  The  secretaries  were  not  members  of  the  conference,  but  were  appointed 
from  different  countries:  ten  from  the  Netherlands,  four  from  Russia,  three 
from  France,  two  from  Belgium,  and  one  each  from  Roumania,  the  United 
States,  Spain,  Great  Britain,  and  Panama. 

3  These  nine  were:  Great  Britain,  Germany,  Italy,  Spain,  Portugal, 
Japan,  China,  Turkey,  and  Brazil. 

4  Great  Britain,  Germany,  Italy,  and  Austria. 

5  France,  Denmark,  Sweden,  Norway,  Switzerland,  Greece,  Roumania, 
Servia,  Persia,  Mexico,  Argentina,  and  Chili. 


* 


VII.    MEETINGS 
I 

a.    THE   CONFERENCE   OF    1899 

The  meetings  were  of  three  kinds,  corresponding  to  the 
three  kinds  of  assemblies.  The  conference  held  "plenary 
sessions,"  the  commissions  held  "reunions,"  and  the  sub- 
commissions  and  committees  held  "meetings." 

The  plenary  sessions  of  the  first  conference  were  ten  in 
number,  and  were  held  on  the  following  dates:  May  18, 
20,  and  23;  June  20;  July  5,  21,  25,  27,  28,  and  29.  Seven 
of  these  were  of  a  chiefly  formal  character  and  may  be 
briefly  alluded  to;  the  first,  second,  and  tenth  sessions 
require  a  somewhat  fuller  treatment. 

At  the  third  session,  the  members  of  the  first  three  com- 
missions were  announced,  the  conference  having  approved 
of  creating  these  commissions  at  its  second  session  on  the 
20th  of  May,  and  the  members  having  been  assigned 
to  them  during  the  two  subsequent  days.  At  the  fourth 
session,  the  report  of  the  II  Commission  on  the  extension 
of  the  Geneva  Convention  to  naval  warfare  was  adopted, 
and  the  Commission  on  Editing  was  appointed.  At  the 
fifth  session,  the  report  of  the  II  Commission  on  the 
laws  and  customs  of  war  was  adopted,  and  the  Ameri- 
can delegation's  propositions  concerning  the  immunity  of 
private  property  on  the  high  seas  in  time  of  war  were  re- 
ferred to  a  future  conference.  At  the  sixth  session,  the 
report  of  the  I  Commission  on  armaments  and  on  the 

35 


36  THE  TWO   HAGUE   CONFERENCES 

employment  of  novel  instruments  of  warfare  was  adopted. 
At  the  seventh  session,  the  report  of  the  III  Commission 
on  the  peaceful  adjustment  of  international  differences  was 
adopted,  subject  to  the  declaration  of  the  United  States 
in  regard  to  the  Monroe  Doctrine.  The  eighth  and  ninth 
sessions  were  devoted  to  a  discussion  of  the  Final  Act,  and 
to  the  placing  upon  record  of  various  formal  declarations. 

The  first  session  was  held  upon  the  Czar's  birthday, 
May  1 8,  in  the  afternoon.  In  the  morning  of  that  day,  the 
Russian  delegates  attended  high  mass  in  honor  of  their  em- 
peror's birthday.  This  was  the  only  religious  ceremony 
even  remotely  connected  with  either  conference ;  and  even 
it  was  criticised  as  being  out  of  place  in  connection  with 
an  assembly  whose  members  were  devotees  of  so  many 
different  religions. 

At  two  o'clock  in  the  afternoon,  in  the  Orange  Hall  of 
the  House  in  the  Woods,  the  conference  was  called  to  order 
by  the  Netherlands  minister  of  foreign  affairs,  M.  de  Beau- 
fort. In  the  course  of  his  address,  M.  de  Beaufort  made 
this  noteworthy  prediction :  "  The  day  of  the  meeting  of 
this  conference  will  be,  without  contradiction,  one  of  the 
days  which  will  mark  the  history  of  the  century  about  to 
close."  After  welcoming  the  conference  in  the  name  of  the 
Queen  of  the  Netherlands,  and  commending  the  Czar  for 
convoking  an  assembly  with  "the  mission  of  seeking  the 
means  of  putting  a  limit  upon  increasing  armaments  and  of 
preventing  calamities  which  threaten  the  whole  world," 
M.  de  Beaufort  proposed  that  a  telegram  of  congratulations 
be  sent  to  the  Czar,  and  that  Russia's  first  delegate  be 
elected  president  of  the  conference.  Both  of  these  pro- 
posals were  unanimously  accepted,  and  M.  de  Staal  made 
a  short  address  of  thanks  for  the  honor  conferred  upon  him, 


MEETINGS 


37 


and  of  appreciation  of  "  the  historic  soil  of  the  Netherlands," 
"the  cradle  of  the  science  of  international  law,"  in  which, 
through  the  hospitality  of  the  Queen,  they  had  come  to- 
gether. At  the  suggestion  of  M.  de  Staal,  a  telegram  of 
greeting  was  then  sent  to  the  Queen;  the  two  honorary 
officers  and  the  secretaries  of  the  conference  were  ap- 
pointed ;  a  motion  for  secret  sessions  was  passed  ;  and  the 
first  meeting  of  the  historic  assembly  came  to  an  end,  after 
a  duration  of  one  half  hour. 

At  the  second  plenary  session,  May  20,  two  telegrams 
of  thanks  and  good  wishes  from  the  Queen  and  the  Czar 
were  read,  the  creation  of  the  first  three  commissions  was 
approved,  and  M.  de  Staal  made  his  formal  presidential 
address.  Stating  the  principal  aim  of  the  conference  to 
be  that  of  seeking  "the  most  effective  means  of  assuring  to 
all  nations  the  benefits  of  a  real  and  durable  peace,"  M. 
de  Staal  noted  the  fact  that  "  the  instinct  of  the  peoples, 
anticipating  the  decision  taken  on  this  point  by  the  gov- 
ernments, has  given  to  our  assembly  the  name  of  Peace 
Conference."  "The  Peace  Conference,"  he  said,  "must 
not  fail  in  the  duty  which  devolves  upon  it ;  there  must 
result  from  its  deliberations  something  tangible,  something 
which  all  mankind  confidently  expects.  The  eagerness 
which  all  the  powers  have  shown  in  accepting  the  propo- 
sition contained  in  the  Russian  circulars  is  the  most 
eloquent  testimony  of  the  unanimity  accorded  to  ideas  of 
peace.  .  .  .  The  nations  have  an  ardent  desire  for  peace, 
and  we  owe  it  to  humanity,  we  owe  it  to  the  governments 
which  have  confided  their  powers  to  us  here  and  which 
have  in  charge  the  welfare  of  their  people,  we  owe  it  to 
ourselves,  to  accomplish  a  useful  work  in  determining  tjie 
method  of   employing   some  of   the   means   designed  to 


38  THE   TWO   HAGUE   CONFERENCES 

insure  peace.  ...  It  is  not  a  question  of  entering  the 
domain  of  Utopia.  In  the  work  which  we  are  about  to 
undertake,  we  should  keep  in  view  the  possible,  and  not 
attempt  to  seek  for  abstract  ideals.  Without  at  all  sacri- 
ficing our  ulterior  hopes,1  we  should  remain  within  the 
realm  of  reality  and  test  it  to  its  lowest  depth,  so  as  to  lay 
solid  foundations  and  build  on  concrete  bases."  After 
praising  the  attempts  of  diplomacy  to  smooth  away  inter- 
national differences  and  jealousies  which,  in  spite  of  many 
mutual  interests  and  bonds  between  the  nations,  inevi- 
tably arise,  Baron  de  Staal  said  that  although  "  diplo- 
macy long  ago  admitted  arbitration  and  mediation  within 
its  practice,  it  has  not  determined  the  method  of  their 
employment,  nor  has  it  defined  the  cases  in  which  they 
should  be  applied.  It  is  to  this  high  task  that  we  are  to 
devote  our  efforts,  sustained  by  the  conviction  that  we 
are  striving  for  the  welfare  of  all  mankind  along  the  path 
which  preceding  generations  have  traced  for  us."  After 
alluding  to  the  other  two  parts  of  the  Russian  pro- 
gramme, the  mitigation  of  the  horrors  of  warfare  and  the 
limitation  of  armaments,  the  orator  concluded  with  the 
words:  "  Such,  then,  gentlemen,  are  the  essential  ideas  which 
should  in  general  direct  our  deliberations.  We  shall  con- 
sider them,  I  am  sure,  in  a  lofty  and  genuinely  conciliatory 
spirit,  for  the  purpose  of  pursuing  the  path  which  leads  to 
the  consolidation  of  peace.  We  shall  thus  accomplish  a 
useful  task,  for  which  future  generations  must  thank  the 
sovereigns  and  governments  represented  within  these  walls." 

1  This  expression  was  denounced  in  many  newspapers  as  an  evidence  of 
Russia's  determination  to  push  on,  in  spite  of  the  Peace  Conference  which  it 
had  called,  in  its  career  of  territorial  aggrandizement.  If  such  had  been  Staal's 
meaning,  he  would  have  been  too  astute  to  confess  it;  what  the  words  implied 
were,  of  course,  ulterior  hopes  of  universal  and  permanent  peace. 


MEETINGS 


39 


The  tenth  and  last  plenary  session  was  held  at  three 
o'clock  in  the  afternoon  of  Saturday,  the  29th  of  July. 
The  morning  of  that  day  had  been  devoted  to  the  signing 
of  the  various  conventions  and  declarations  agreed  upon. 
These  documents  had  been  engrossed  and  the  seals  of  the 
various  signatory  powers  affixed  to  them;  they  were  then 
spread  out  on  the  tables  in  the  dining  room  of  the  House 
in  the  Woods,  and  the  delegates  from  each  country  in  al- 
phabetical order  came  out  from  the  Orange  Hall  to  sign 
them.  At  the  plenary  session  in  the  afternoon,  the  signa- 
tures were  first  reported  on ;  then  the  president  stated  that 
at  the  request  of  the  government  of  the  Netherlands  he 
would  have  the  secretary  read  to  the  conference  a  letter 
from  the  Queen  of  the  Netherlands  to  the  Pope  and  the 
Pope's  reply  to  it.  These  letters  had  to  do  with  the  meet- 
ing of  the  conference  at  The  Hague  and  the  Pope's  non- 
participation  in  it ; l  and  many  of  the  delegates  considered 
this  rather  remarkable  action  on  the  part  of  the  Nether- 
lands government  and  the  president  of  the  conference  as 
unnecessary  and  indeed  ill-advised,  especially  in  view  of  the 
fact  that  the  first  delegates  had  been  kept  in  ignorance  of  the 
existence  of  the  letters,  which  had  been  written  in  May, 
and  of  the  intention  to  have  them  read  to  the  conference. 
Immediately  after  this  ceremony,  the  president  delivered 
his  farewell  address.  This  was  responded  to  by  Count 
Munster,  the  first  delegate  from  Germany.  Baron  d'Es- 
tournelles,  of  France,  and  M.  de  Beaufort,  of  the  Nether- 
lands, then  made  brief  addresses,2  after  which  the  president 
declared  the  first  Peace  Conference  adjourned  without  day. 

1  See  page  n. 

2  These  four  addresses  had  to  do  chiefly  with  the  results  of  the  conference, 
and  will  be  alluded  to  later,  under  the  appropriate  topic. 


40  THE   TWO   HAGUE   CONFERENCES 

The  I  Commission  held  eight  reunions,  at  intervals 
from  the  23d  of  May  to  the  20th  of  July.  Its  first  sub- 
commission  held  six  meetings,  from  May  26  to  June  26; 
and  its  second  subcommission  held  seven  meetings,  from 
May  26  to  June  30. 

The  IT  Commission  held  four  reunions,  from  May  23 
to  July  5 ;  its  first  subcommission  held  five  meetings,  from 
May  25  to  June  15;  and  its  second  subcommission  held 
twelve  meetings,  from  May  25  to  July  1. 

The  III  Commission  held  nine  reunions,  from  May  23 
to  July  25 ;  and  its  committee  of  examination  held  eighteen 
meetings,  from  May  26  to  July  21. 

It  was  in  these  twenty-one  commission  reunions  and 
forty-eight  subcommission  and  committee  meetings  that 
the  detailed  business  of  the  conference  was  transacted. 
Their  deliberations  will  not  be  taken  up  separately  and  in 
chronological  order  in  this  book,  but  will  be  narrated 
according  to  topics  discussed. 

b.   THE   CONFERENCE   OF  1907 

The  second  conference,  although  it  continued  eight 
weeks  longer  than  the  first,  held  only  one  more  plenary 
session.  These  were  eleven  in  number  and  were  held  on 
the  following  dates:  June  15  and  19;  July  20;  August 
17;   September  7,  21,  and  27;    October  9,  16,  17,  and  18. 

The  first  session  was  opened  at  three  o'clock  in  the 
afternoon  of  June  15  by  the  Netherlands  minister  of  for- 
eign affairs,  Jonkheer  van  Tets  van  Goudriaan,  who  in 
welcoming  the  conference  to  The  Hague  mentioned  the 
part  played  in  its  convocation  by  the  Czar  and  the  Queen ; 
and  of  President  Roosevelt  he  spoke  as  follows : 


MEETINGS  41 

"But  I  think  that  it  would  be  improper  to  omit  at  this  hour  the 
tribute  of  our  gratitude  to  the  eminent  statesman  who  presides  over 
the  destinies  of  the  United  States  of  America.  President  Roosevelt 
has  powerfully  contributed  to  the  growth  of  the  grain  sowed  by  the 
august  initiator  of  the  solemn  international  assemblies  convoked  for 
the  discussion  and  better  definition  of  the  rules  of  international  law." 

On  the  motion  of  M.  van  Tets,  a  telegram  of  greeting 
was  sent  to  the  Czar,  and  the  first  delegate  from  Russia, 
M.  Nelidow,  was  chosen  president  of  the  conference.     „ 

M.  Nelidow  nominated  the  honorary  president,  the  vice 
president,  and  the  secretaries  of  the  conference,  and  pro- 
posed that  a  telegram  of  greeting  be  sent  to  the  Queen; 
he  also  referred  to  the  part  played  in  convoking  the  con- 
ference by  "the  eminent  head  of  the  great  North  Ameri- 
can Confederation,  whose  generous  impulses  are  inspired 
always  by  the  noblest  sentiments  of  justice  and  humanity." 
In  speaking  of  the  work  of  the  conference,  "the  discussion 
in  common  of  the  dearest  interests  of  humanity  —  those 
of  conciliation  and  justice,"  M.  Nelidow  said: 

"Every  friend  of  civilization  follows  with  sympathetic  interest  the 
progress  of  international  institutions  growing  out  of  the  first  Peace 
Conference,  and  a  generous  citizen  of  the  United  States  has  given  a 
fortune  for  the  erection  here  of  a  sumptuous  palace  where  they  will 
have  their  permanent  seat.  It  is  for  us  to  make  them  worthy  of  this 
munificent  act,  and  thereby  to  prove  to  Mr.  Carnegie  our  apprecia- 
tion. But  let  us  not  be  too  ambitious.  Let  us  not  forget  that  our 
means  of  action  are  limited;  that  nations  are  living  beings  as  truly 
as  are  the  individuals  who  compose  them;  that  they  have  the  same 
passions,  the  same  aspirations,  the  same  defects,  the  same  illusions. 
.  .  .  But  let  not  that  discourage  us  from  dreaming  of  the  ideal  of  a 
universal  peace  and  a  brotherhood  of  peoples,  which  are  after  all 
only  the  natural  and  higher  aspirations  of  the  human  soul.  Is  not 
the  essential  condition  of  all  progress  the  pursuit  of  an  ideal  towards 
which  one  always  strives  without  ever  being  able  to  attain  it  ?    Excel 


42  THE   TWO   HAGUE   CONFERENCES 

sior  is  the  motto  of  progress.  Let  us  then  bravely  take  up  the  work 
before  us,  having  as  the  light  of  our  path  the  luminous  star  of  peace 
and  justice,  to  which  we  shall  never  attain,  but  which  will  lead  us 
always  towards  the  welfare  of  humanity." 

After  a  duration  of  thirty-five  minutes  the  session  closed. 

At  the  second  plenary  session,  telegrams  from  the  Queen 
and  Czar  were  read ;  the  organization  of  the  conference 
and  the  few  rules  necessary  for  its  procedure  were  adopted; 
the  president  announced  that  the  governments  represented 
at  the  second  conference  which  had  not  participated  in  the 
first  had  given  in  their  adhesion  to  the  acts  of  the  first; 
the  German  and  British  delegations  announced  that  they 
would  propose  the  establishment  of  an  international  court 
of  appeal  to  adjudicate  cases  of  prizes  taken  in  naval  war- 
fare; and  the  United  States  delegation  announced  that  it 
would  reserve  the  right  of  introducing  the  question  of  the 
collection  of  public  debts  by  force,  or  any  other  question 
not  mentioned  in  the  programme.  The  session  lasted 
forty-five  minutes. 

The  third  plenary  session,  after  the  presentation  of  the 
report  of  the  Commission  on  Petitions,  was  devoted  to  the 
discussion  and  adoption  of  the  III  Commission's  report  on 
the  application  of  the  Geneva  Convention  to  maritime 
warfare. 

At  the  fourth  plenary  session,  reports  from  the  II  and 
III  Commissions  on  the  laws  and  customs  of  war  on  land, 
and  on  the  bombardment  of  seaports,  were  adopted,  and  the 
question  of  the  limitation  of  armaments  was  disposed  of. 

The  fifth  plenary  session  was  devoted  to  the  adoption  of 
the  II  Commission's  report  on  the  declaration  of  war  and 
the  rights  and  duties  of  neutral  states,  and  to  a  discussion 
of  the  same  commission's  report  on  the  treatment  of  neu- 


MEETINGS  43 

trals  in  the  territory  of  belligerents,  which  was  referred 
back  to  the  commission. 

The  sixth  plenary  session  was  opened  by  the  announce- 
ment that,  "under  the  aegis  of  the  conference,"  a  treaty  of 
arbitration  had  just  been  concluded  between  Italy  and  Ar- 
gentina ;  the  amended  report  of  the  II  Commission  on  the 
status  of  neutrals  in  belligerent  territory  was  read  and 
adopted ;  the  report  of  the  I  Commission  establishing  an 
International  Prize  Court,  and  the  report  of  a  special 
committee  fixing  a  time  for  the  convocation  of  a  third 
Peace  Conference,  were  also  read  and  adopted. 

At  the  seventh  plenary  session,  the  laws  and  customs  of 
warfare  on  the  sea,  elaborated  by  the  IV  Commission,  were 
reported  and  adopted. 

At  its  eighth  plenary  session,  the  conference  approved 
the  III  Commission's  reports  on  the  location  of  sub- 
marine mines,  and  on  the  conduct  of  warships  in  neutral 
ports  in   time  of  war. 

The  important  reports  of  the  I  Commission  on  the  Per- 
manent Court  of  Arbitration  and  on  the  extension  of 
obligatory  arbitration  were  adopted  at  the  ninth  plenary 
session;  the  resolution  offered  by  Baron  d'Estournelles 
de  Constant,  in  regard  to  the  construction  of  the  Peace 
Palace,  was  unanimously  adopted  j1  and  the  Commission 
on  Editing  began  its  report  on  the  Final  Act. 

The  report  of  the  Commission  on  Editing  was  completed 
at  the  tenth  plenary  session,  and  the  Final  Act  was  adopted  ; 
the  Commission  on  Petitions  also  made  its  final  report. 

The  eleventh  and  last  plenary  session,  October  18,  was 
devoted  to  addresses  of  farewell,  delivered  by  President 
Nelidow,  Vice  President  de  Beaufort,  of  the  Netherlands, 

1  See  page  20. 


44  THE  TWO   HAGUE  CONFERENCES 

Sir  Edward  Fry,  of  Great  Britain,  Count  Tornielli,  of 
Italy,  M.  Saenz  Pena,  of  Argentina,  M.  Perez  Triana, 
of  Colombia,  M.  Tzudzuki,  of  Japan,  Samad  Khan,  of 
Persia,  and  M.  van  Tets  van  Goudriaan,  the  Netherlands 
minister  of  foreign  affairs,  and  the  honorary  president 
of  the  conference.  These  addresses  were  devoted  partly 
to  congratulations  and  thanks  extended  to  various  officials 
and  governments,  and  partly  to  a  discussion  of  the  general 
results  of  the  conference.  From  this  latter  point  of  view, 
two  or  three  of  them  are  of  historic  interest  and  will  be 
referred  to  again.1 

The  I  Commission  held  ten  reunions,  between  June  22 
and  October  11;  its  first  subcommission,  and  its  various 
committees,  met  forty-seven  times ;  and  its  second  subcom- 
mission and  committee  met  six  times.  The  II  Commis- 
sion's reunions  were  six  in  number,  and  extended  from  June 
22  to  September  9;  its  first  subcommission  met  five  times, 
and  its  second  subcommission  seven  times.  The  III 
Commission  held  eight  reunions,  between  June  4  and 
October  4;  its  first  and  second  subcommissions  met  four 
and  five  times,  respectively.  And  the  IV  Commission's  re- 
unions, extending  from  June  24  to  September  26,  numbered 
fourteen,  while  its  committees  held  twenty-one  meetings. 

When  it  is  recalled  that  many  of  these  nearly  eight  score 
meetings  were  several  hours  in  length,  it  must  be  admitted 
that  the  conference's  four  months  of  existence  were  labo- 
rious ones;  but,  on  the  other  hand,  it  must  remain  a 
source  of  surprise  as  well  as  of  gratification  that  so  many 
results  of  weighty  import  were  accomplished  in  meetings 
comparatively  few  in  number  and  extending  over  only 
four  months. 

1  See  Section  XIV:  A  Summary  of  Results. 


VIII.    PROGRAMME 
a.   THE   CONFERENCE   OF  1899 

For  some  time  after  the  publication  of  Count  Mouravieff's 
rescript  of  August  24,  1898,  suggesting  a  conference,  it  was 
thought  that  the  Russian  government  would  have  no  defi- 
nite proposals  to  bring  before  the  conference,  but  would 
simply  introduce  the  subject  of  the  limitation  of  armaments, 
hoping  that  in  the  course  of  the  discussion  some  practical 
solution  of  the  problem  might  arise.  But  as  this  plan  was 
too  indefinite  to  be  fruitful  of  practical  results,  a  second 
Russian  rescript  was  issued  January  11,  1899  [Russian 
style,  December  30,  1898],  containing  the  following  sug- 
gestions as  to  a  definite  programme : 

"The  subjects  to  be  submitted  for  international  discussion  at  the 
conference  may  be  summarized,  in  general  terms,  as  follows: 

"1.  An  understanding  stipulating  the  non-increase,  for  a  definite 
period,  of  the  present  effective  military  and  naval  forces,  and  also  of 
the  military  budgets  pertaining  to  them;  and  a  preliminary  investi- 
gation of  the  means  by  which  even  a  reduction  in  these  forces  and 
budgets  may  be  secured  in  the  future. 

"2.  A  prohibition  of  the  introduction,  in  armies  and  navies,  of 
any  new  kinds  of  firearms  whatsoever,  as  well  as  of  new  explosives 
or  any  powders  more  powerful  than  those  now  in  use,  either  for  mus- 
kets or  for  cannon. 

"3.  A  restriction  of  the  use,  in  military  campaigns,  of  the  for- 
midable explosives  already  existing;  and  a  prohibition  of  the  hurling 
of  projectiles  or  explosives  of  any  kind  from  balloons  or  by  analogous 
means. 

45 


46  THE  TWO   HAGUE   CONFERENCES 

"4.  A  prohibition  of  the  use,  in  naval  warfare,  of  submarine  tor- 
pedo boats  or  plungers,  or  of  other  similar  engines  of  destruction; 
and  an  agreement  not  to  construct  in  the  future  war  vessels  with  rams. 

"5.  The  application  to  naval  warfare  of  the  stipulations  of  the 
Geneva  Convention  of  1864,  on  the  basis  of  the  additional  articles  of 
1868. 

"6.  The  neutralization  of  ships  or  boats  employed  in  saving  those 
overboard  during  or  after  naval  battles. 

"7.  A  revision  of  the  Declaration  concerning  the  laws  and  cus- 
toms of  war,  elaborated  in  1874  by  the  Conference  of  Brussels  and 
remaining  unratified  to  the  present  day. 

"8.  The  acceptance,  in  principle,  of  the  employment  of  good 
offices,  of  mediation  and  of  facultative  arbitration,  in  cases  adaptable 
to  them,  with  the  object  of  preventing  armed  conflicts  between  na- 
tions; an  understanding  as  to  the  method  of  their  application,  and  the 
establishment  of  a  uniform  practice  in  their  employment." 

No  amendments  or  reservations  were  made  by  the  other 
governments  in  accepting  this  Russian  programme,  and 
it  became  the  basis  of  the  conference's  discussions  and,  as 
we  have  seen,  of  the  division  of  work  between  the  first  three 
commissions.  The  order  of  topics  in  the  Russian  pro- 
gramme was  followed  in  assigning  them  to  the  three  com- 
missions, armaments  coming  first  and  arbitration  last ;  but 
Baron  de  Staal,  in  his  opening  address,  inverted  this  order, 
placing  arbitration  first  and  dwelling  chiefly  upon  it,  while 
armaments  came  last  in  his  mention  of  topics  and  received 
least  attention  from  him.  It  may  be  remarked  that  the 
conference  itself  emphasized  this  illustration  of  the  old  adage 
that  "the  first  shall  be  last,  and  the  last  shall  be  first"; 
for  it  devoted  itself  chiefly  to  the  topic  of  arbitration  and 
achieved  its  most  noteworthy  triumphs  in  connection  with 
it.  When  the  second  conference  was  summoned,  arbitra- 
tion was  made  the  first  topic  on  the  programme,  and  it 
was  assigned  to  the  I  Commission. 


PROGRAMME 


47 


After  the  enumeration  of  topics  suggested  for  discussion, 
the  Russian  rescript  of  January  n,  1899,  continued:  "It 
is  quite  understood  that  all  questions  concerning  the  po- 
litical relations  of  states,  and  the  order  of  affairs  estab- 
lished by  treaties,  as  in  general  all  questions  which  do  not 
fall  directly  within  the  programme  adopted  by  the  cabinets, 
should  be  excluded  absolutely  from  the  deliberations  of  the 
conference."  In  Baron  de  Staal's  opening  address  to 
the  conference,  he  too  emphasized  this  exclusiveness  of 
the  programme  by  saying,  after  its  eight  topics  had  been 
assigned  to  the  first  three  commissions:  "It  is  understood 
that,  outside  of  the  topics  mentioned  above,  the  conference 
does  not  consider  itself  competent  to  consider  any  other 
question.  In  case  of  doubt  the  conference  shall  have  to 
decide  whether  any  proposition,  originating  in  the  com- 
missions, is  or  is  not  within  the  scope  of  the  topics  outlined." 

This  ruling  of  the  president  was  adhered  to,  and  in  the 
few  instances  where  new  propositions  were  introduced  in 
commissions  or  subcommissions,  the  conference  declined 
their  discussion  on  the  ground  of  "no  jurisdiction." 

b.   THE  CONFERENCE   OF   1907 

When  the  Russian  government  issued  its  call  for  the  sec- 
ond conference,  April  6,  1906  (Russian  style,  March  24, 
1906),  it  published  a  programme  of  topics  for  discussion, 
and  as  introduction  to  it  said:  "In  taking  the  initiative 
in  convoking  a  second  Conference  of  the  Peace,  the  Impe- 
rial Government  has  had  in  view  the  necessity  of  giving  a 
new  development  to  the  humanitarian  principles  which 
served  as  the  basis  of  work  for  the  great  international  assem- 
bly of  1899."     After  stating  the  reasons  for  this  necessity 


48  THE   TWO   HAGUE   CONFERENCES 

in  regard  to  arbitration  and  warfare  upon  land  and  sea, 
the  Russian  circular  continues: 

"Believing,  then,  that  there  is  reason  at  present  for  proceeding 
with  the  examination  of  only  those  questions  which  are  especially 
prominent,  inasmuch  as  they  have  arisen  from  the  experience  of  re- 
cent years,  and  without  raising  those  which  concern  the  restriction 
of  military  or  naval  forces,  the  Imperial  Government  proposes  as  the 
programme  of  the  projected  meeting  the  following  principal  points: 

"i.  Improvements  in  those  provisions  of  the  convention  relative 
to  the  settlement  of  international  disputes  which  have  to  do  with  the 
Court  of  Arbitration  and  the  International  Commissions  of  Inquiry. 

"2.  Additions  to  the  provisions  of  the  convention  relative  to  the 
laws  and  customs  of  warfare  on  land:  among  others,  those  con- 
cerning the  opening  of  hostilities,  the  rights  of  neutrals  on  land, 
etc. ;  and,  one  of  the  declarations  of  1899  having  lapsed,  the  question 
of  its  renewal. 

"3.  The  elaboration  of  a  convention  relative  to  the  laws  and  cus- 
toms of  maritime  warfare,  concerning: 

"  special  operations  of  maritime  warfare,  such  as  the  bombardment 
by  a  naval  force  of  cities,  towns  and  villages,  the  placing  of  torpedoes, 
etc.; 

"the  transformation  of  merchant  vessels  into  war  ships; 

"the  treatment  of  the  private  property  of  belligerents  on  the  sea; 

"  the  interval  of  grace  accorded  to  merchant  vessels  for  leaving  neu- 
tral ports  or  the  ports  of  the  enemy  after  the  opening  of  hostilities; 

"  the  rights  and  duties  of  neutrals  on  the  sea :  among  others,  ques- 
tions of  contraband,  the  treatment  of  belligerent  ships  in  neutral  ports, 
the  destruction  by  superior  force  of  neutral  merchant  vessels  captured 
as  prizes. 

"In  this  convention,  also,  should  be  introduced  provisions  relative 
to  warfare  on  land  which  might  be  equally  applicable  to  warfare  on 
the  sea. 

"4.  Additions  to  the  convention  of  1899  for  the  adaptation  to  mari- 
time warfare  of  the  principles  of  the  Geneva  Convention  of  1864." 

The  above  programme  was  subjected  to  the  following 
condition:     "As   was  the    case  with  the    Conference  of 


PROGRAMME 


49 


1899,  it  will  remain  quite  understood  that  the  delibera- 
tions of  the  proposed  assembly  should  affect  neither  the 
political  relations  between  states,  nor  the  order  of  affairs 
established  by  treaties,  nor,  in  general,  the  questions 
which  do  not  fall  directly  within  the  programme  adopted 
by  the  cabinets." 

This  condition,  however,  was  not  indorsed  by  all  of  the 
governments  when  they  accepted  the  Russian  invitation  to 
be  represented  at  the  conference,  and  they  accordingly 
made  certain  reserves.  The  United  States  reserved  the 
liberty  of  submitting  two  supplementary  questions,  namely : 
that  of  the  reduction  or  limitation  of  armaments,  and  that 
of  an  agreement  to  observe  certain  limitations  in  the  use 
of  force  for  the  collection  of  ordinary  public  debts  arising 
from  contracts. 

Spain  expressed  its  desire  to  discuss  the  limitation  of 
armaments,  and  reserved  the  right  of  introducing  this 
question. 

Great  Britain  announced  that  it  attached  great  impor- 
tance to  having  the  question  of  expenditures  for  armaments 
discussed,  and  reserved  the  right  of  introducing  it ;  it  also 
reserved  the  right  of  abstaining  from  the  discussion  of 
any  question  mentioned  in  the  Russian  programme  which 
should  appear  to  it  to  lead  to  no  useful  result. 

Japan  believed  that  certain  questions  not  specifically 
enumerated  in  the  programme  might  be  profitably  included 
among  those  to  be  examined,  and  reserved  the  right  of  ab- 
staining or  withdrawing  from  any  discussion  taking  or 
promising  to  take  a  direction  not  conducive,  in  its  judg- 
ment, to  a  useful  result. 

Bolivia, 'Denmark,  Greece,  and  the  Netherlands  also 
reserved  the  right  of   proposing  for  consideration  other 


50  THE  TWO   HAGUE   CONFERENCES 

subjects  analogous  to  those  specifically  mentioned  in  the 
Russian  programme. 

Germany  and  Austria  reserved  the  right  of  abstaining 
from  the  discussion  of  any  question  not  appearing  to  tend 
towards  a  practical  result. 

Even  Russia,  after  being  informed  of  these  various  reser- 
vations, declared  that  it  would  maintain  its  programme  of 
April,  1906,  as  the  basis  of  the  deliberations  of  the  confer- 
ence, but  that  it  would  reserve  in  its  turn  the  right  of  ab- 
staining from  the  discussion  of  any  question  not  appearing 
to  tend  towards  a  practical  result. 

At  least  eleven  of  the  countries  invited  having  made  reser- 
vations as  to  the  programme,  and  some  of  them  in  a  very 
positive,  not  to  say  belligerent,  manner,  it  looked  for  a  time 
as  though  the  second  Peace  Conference  would  have  a  very 
stormy  career,  or  would  probably  not  enter  upon  any  career 
at  all.  But  through  the  persuasive  influence  of  diplo- 
macy, and  especially,  it  is  believed,  as  a  result  of  a  visit 
made  by  Professor  de  Martens,  of  Russia,  to  several  of  the 
great  powers  which  had  made  reservations,  it  was  decided 
that  they  would  send  representatives  to  the  conference,  and 
that,  in  the  words  of  Chancellor  von  Blilow,  of  Germany, 
they  would  be  "content  to  leave  to  those  powers  which  are 
convinced  that  such  discussions  will  yield  a  genuinely 
successful  result,  the  burden  of  carrying  them  on." 

This  decision  was  carried  out,  and  all  the  powers  were 
represented  at  the  conference;  but  at  its  second  session 
(its  first  real  business  session),  the  United  States  delega- 
tion reserved  the  right  of  presenting  "the  question  of  the  col- 
lection of  public  debts  by  force,  or  any  other  question  not 
mentioned  in  the  programme"  ;  and  the  British  delegation 
also  reserved  "the  right  of  formulating  new  propositions 


PROGRAMME  51 

later."  President  Nelidow  admitted  the  right  claimed 
by  the  two  delegations,  but  ruled  that  every  new  proposi- 
tion, not  included  within  the  subjects  enumerated  in  the 
programme,  should  first  be  communicated  in  writing  to  the 
president  of  the  conference  and  immediately  printed  and 
distributed  among  the  members.  This  ruling  was  accepted, 
and  thus  the  first  great  obstacle  of  the  second  conference 
was  avoided. 


IX.    ARMAMENTS 

a.   THE   CONFERENCE   OF    1899 

For  centuries  it  has  been  the  belief  of  the  civilized  world 
that  "if  you  wish  for  peace,  you  must  prepare  for  war" 
(si  vis  pacem,  para  helium) ;  and  for  centuries  it  acted  upon 
that  belief.  But  it  remained  for  Prince  Bismarck,  the 
"Iron  Chancellor"  of  Germany,  to  develop  this  rather 
vague  and  often  insincere  belief  into  a  genuine  "barracks 
philosophy,"  which  was  applied  by  him  most  vigorously 
in  his  own  country  and  was  adopted  with  as  much  thor- 
oughness as  possible  by  the  governments  of  other  Euro- 
pean states.  Possessed  not  so  much  by  a  genuine  love  of 
peace  as  by  a  genuine  fear  of  the  consequences  of  war,  Bis- 
marck converted  Prussia  and  Germany  into  a  modern 
Sparta  as  nearly  as  the  circumstances  of  the  Nineteenth 
Century  would  permit ;  and  the  other  statesmen  of  Europe, 
following  his  example,  made  of  Europe  an  armed  camp. 

The  creation  and  increase  of  armaments  went  on  at 
such  a  pace  that  "armed  peace"  became  more  burdensome 
than  actual  war  had  been  a  generation  before;  and,  like 
the  mediaeval  knights  who,  settling  disputes  by  appeals 
to  the  ordeal  of  battle,  had  so  increased  their  armor  that 
its  weight  kept  them  prone  upon  their  backs  if  they  chanced 
to  fall,  so  the  civilized  states  of  Europe  came  to  see  that 
their  appeal  to  the  god  of  battles  for  the  settlement  of  dis- 
putes involved  such  enormous  expenditures  in  time  of 

52 


ARMAMENTS  53 

peace  that  they  were  badly  crippled  when  warfare  actually 
began. 

These  considerations  burned  themselves  in  upon  the 
minds  of  the  peoples,  upon  whose  backs  the  military  bur- 
den necessarily  rested,  and  when  Bismarck  fell  from  power 
in  1890  they  hoped  that  his  system  of  "blood  and  iron" 
would  end.  Less  than  a  month  after  Bismarck's  death 
(July  30,  1898),  the  Czar  issued  his  rescript  for  the  first 
Peace  Conference,  and  the  peoples  at  once  made  their  wish 
the  father  of  their  thought  and  said  that  now  disarmament 
would  surely  come. 

But  it  was  not  disarmament  that  the  Czar's  rescript 
proposed.  It  did  allude  to  "a  possible  reduction  of  the 
excessive  armaments  which  weigh  upon  all  nations"  as 
an  "ideal  towards  which  the  endeavors  of  all  governments 
should  be  directed."  It  denounced  the  system  of  in- 
creasing armaments  as  "a  blow  at  the  public  prosperity 
in  its  very  source,"  as  "paralyzing  or  checking  the  devel- 
opment of  national  culture,  economic  progress,  and  the 
production  of  wealth,"  as  a  prime  cause  of  economic  crises, 
and  as  an  "inevitable  cause  of  the  very  cataclysm  it  is  de- 
signed to  avert."  And  it  contained  these  emphatic  words  : 
"  To  put  an  end  to  these  incessant  armaments  and  to  seek 
the  means  of  warding  off  the  calamities  which  threaten 
the  whole  world  —  such  is  the  supreme  duty  which  is 
imposed  to-day  upon  all  states."  But  it  was  the  increase 
of  armaments  that  the  Russian  statesmen  had  in  mind, 
and  that  the  rescript  was  designed  to  emphasize  and  the 
conference  to  consider.  When  Count  Mouravieff  read 
the  rescript  to  the  foreign  diplomatists  he  requested  the 
British  Ambassador,  Sir  Charles  Scott,  to  observe  '  that 
this  eloquent  appeal,  winch  he  had  drawn  up  at  the  die- 


54  THE  TWO   HAGUE  CONFERENCES 

tation  of  the  Emperor,  did  not  invite  a  general  disarma- 
ment, as  such  a  proposal  would  not  have  been  likely  to  be 
generally  accepted  as  a  practical  one  at  present,  nor  did 
His  Imperial  Majesty  look  for  an  immediate  realization 
of  the  aims  he  had  so  much  at  heart,  but  desired  to  initiate 
an  effort,  the  effects  of  which  could  only  be  gradual.' 

Count  Mouravieff's  second  circular,  January  n,  1899, 
suggested  a  programme  of  topics  for  the  conference,  and 
mentioned  first  on  the  list  the  subject  of  armaments,  in 
the  following  words:  "An  understanding  stipulating  the 
non-increase,  for  a  definite  period,  of  the  present  effective 
military  and  naval  forces,  and  also  of  the  military  budgets 
pertaining  to  them ;  and  a  preliminary  investigation  of  the 
means  by  which  even  a  reduction  of  these  forces  and 
budgets  may  be  secured  in  the  future." 

This  first  article  of  the  Russian  programme  was  assigned 
to  the  I  Commission  at  the  time  of  its  creation,  and  its 
importance  was  thus  emphasized  by  the  commission's 
president,  M.  Beernaert,  of  Belgium: 

"Among  the  tasks  of  high  importance  which  lie  before  the  con- 
ference, our  I  Commission  has,  perhaps,  the  most  sacred.  We  have 
especially  to  study,  to  discuss,  to  realize,  the  master  ideal  which  has 
created  this  great  international  assembly,  the  ideal,  namely,  of  assur- 
ing to  the  peoples  a  durable  peace,  and  of  placing  a  barrier  to  the  pro- 
gressive and  ruinous  development  of  military  armaments.  Such  is 
the  principal  object  of  the  message,  henceforth  famous,  of  the  24th 
of  August,  1898.  .  .  .  And  with  Emperor  Nicholas  II  himself, 
these  are  no  new  aspirations.  Some  years  ago  he  made  a  present  of 
a  bell  to  I  know  not  what  town  of  France  —  to  Chateaudun,  I  think, 
—  and  on  the  bronze  he  had  engraved  the  words:  'May  it  never  ring 
other  than  the  hour  of  concord  and  of  peace.'  May  this  beautiful 
device,  gentlemen,  inspire  our  labors." 

The    subject    was   thus   opened    at    the    commission's 


ARMAMENTS 


55 


second  reunion,  May  26;  but,  in  commenting  on  the  order 
of  work,  M.  Beernaert  said: 

"At  first  sight,  it  would  seem  quite  natural  to  begin  at  the  begin- 
ning, and  discuss  first  that  problem,  fundamental  and  of  high  im- 
portance, which  is  first  submitted  to  our  investigation.  But  I  believe 
it  right  to  recommend  a  contrary  procedure,  and  it  is  the  inaugural 
address  of  our  honorable  president  [of  the  conference]  that  has  sug- 
gested to  me  the  idea.  Limitation  of  armaments,  which  forms  the 
frontispiece  of  the  circular  of  the  Russian  government,  appeared  in 
his  address  as  a  conclusion  and  as  a  kind  of  crown  —  a  triumphal 
crown  —  of  our  mutual  efforts.  Yesterday,  too,  an  analogous  pro- 
cedure was  followed  by  the  II  Commission ;  in  its  examination  of  the 
project  discussed  at  the  Conference  of  Brussels  the  last  chapters  were 
taken  up  first,  so  as  to  reserve  until  the  last  those  questions  on  which 
an  agreement  appeared  more  difficult  of  formation.  It  is  by  harmony 
that  we  should  desire  to  arrive  at  harmony." 

The  commission  shared  its  president's  opinion,  and  the 
subject  was  not  taken  up  for  discussion  until  June  23, 
a  month  after  the  opening  of  the  conference,  and  a  month 
before  its  adjournment.  M.  Beernaert  again  empha- 
sized the  importance  and  difficulties  of  the  question,  and 
requested  Baron  de  Staal  to  present  the  Russian  proposals. 
De  Staal  then  spoke  of  the  great  need  of  "  alleviating  the 
burdens  of  peace,  not  by  disarmament,  but  by  a  limitation, 
a  halt,  in  the  ascending  course  of  armaments  and  expendi- 
tures," and  said  that  Russia's  technical  delegates  would 
present  the  Russian  proposals.  Before  this  was  done, 
however,  General  den  Beer  Poortugael,  of  the  Netherlands, 
made  a  short  but  powerful  appeal  for  the  plans  about  to 
be  presented,  basing  it  upon  the  evils  and  dangers  of 
increasing  armaments,  which  he  likened  to  the  wicked 
fairy's  fatal  gift  found  at  the  bottom  of  Pandora's  box, 
and  threatening  the  ruin  of  Europe.     "  To  our  govern- 


56  THE   TWO   HAGUE   CONFERENCES 

ments,"  he  exclaimed,  "bound  together  by  the  cord  of 
our  military  organizations,  like  Alpine  tourists,  the  Czar 
has  said :  '  Let  us  make  a  united  effort,  let  us  halt  on  this 
edge  of  the  abyss;  if  not,  we  shall  perish  !'  Let  us  halt, 
gentlemen;  let  us  make  this  supreme  effort,  let  us  hold 
fast!" 

Colonel  Gilinsky  then  introduced  the  Russian  propo- 
sitions in  regard  to  land  forces  by  a  speech  emphasizing 
the  evils  of  armaments  and  the  need  of  restricting  them. 

"Gentlemen,"  said  he,  "will  the  peoples  represented  in  this  con- 
ference be  entirely  satisfied  if,  in  going  hence,  we  take  them  arbitra- 
tion and  the  laws  of  warfare,  but  nothing  for  times  of  peace,  —  of 
this  armed  peace  which  is  so  heavy  a  burden  on  the  nations,  which 
crushes  them  to  that  point  where  it  can  be  sometimes  said  that  open 
war  would  perhaps  be  better  than  this  state  of  secret  war,  this  inces- 
sant competition  in  which  all  the  world  pushes  forward  larger  and 
larger  armies,  —  larger  now  in  time  of  peace  than  they  used  to  be  in 
times  of  greatest  warfare  ?  The  various  countries  have  engaged  in 
war  only  once  in  every  twenty  or  thirty  years;  but  this  armed  peace 
lasts  for  decades,  it  precedes  war  and  follows  it." 

The  propositions  submitted  by  Colonel  Gilinsky  were 
as  follows: 

i.  An  international  agreement  for  a  term  of  five  years, 
stipulating  the  non-increase  of  the  present  number  of 
troops  maintained  in  time  of  peace  in  each  mother  country. 

2.  The  determination,  in  case  of  this  agreement,  of  the 
number  of  troops  to  be  maintained  in  time  of  peace  by  all 
the  powers,  not  including  colonial  troops. 

3.  The  maintenance,  for  the  same  term  of  five  years, 
of  the  size  of  the  military  budget  in  force  at  the  present 
time. 

At  the  same  reunion  of  the  commission,  Captain  Scheine.. 


ARMAMENTS  57 

of  the  Russian  navy,  presented  the  following  propositions 
in  regard  to  naval  forces : 

1.  The  acceptance  of  the  principle  of  determining, 
for  a  period  of  three  years,  the  size  of  the  naval  budget. 

2.  An  agreement  not  to  increase  the  total  sum  during 
this  triennial  period. 

3.  The  obligation  to  publish  in  advance  during  the 
said  period : 

a.  The  total  tonnage  of  war  ships  which  it  is  proposed 
to  construct,  without  defining  the  types  of  the  ships  them- 
selves ; 

b.  The  number  of  officers  and  men  in  the  navy ; 

c.  The  expenses  of  coast  fortifications,  including  forts, 
docks,  arsenals,  etc. 

At  the  next  reunion  of  the  commission,  June  26,  Colonel 
Gilinsky  made  some  explanatory  comments  upon  his 
three  propositions,  and  stated  that  "  since  colonies  often 
find  themselves  in  danger  or  even  in  a  state  of  war,  it 
would  not  appear  possible  to  prohibit  the  increase  of 
colonial  troops."  He  also  made  the  following  argument 
as  to  Russia's  distant  possessions: 

"Russia  has  no  colonies  properly  so-called,  that  is,  possessions 
absolutely  separated  by  the  sea.  But  we  have  territories  which,  from 
the  point  of  view  of  their  defense,  are  in  the  same  circumstances  as 
are  colonies;  for  they  are  separated  from  the  mother  country,  if  not 
by  the  sea,  at  least  by  enormous  distances,  and  by  the  difficulty  of 
communication." 

He  cited  Central  Asia  and  the  military  district  of  Amur 
as  examples  of  such  territories,  and  proposed  that  they 
be  treated  as  colonies,  and  the  increase  of  their  troops 
left  unrestricted. 

The   Russian   proposals  then  being   taken  up  for  dis- 


58  THE  TWO   HAGUE   CONFERENCES 

cussion,  Colonel  von  Schwarzhoff,  of  Germany,  first  re- 
plied to  General  Poortugael's  speech,  quoted  above,  and 
declared  that  "  as  far  as  Germany  is  concerned,  I  can 
reassure  her  friends  completely  and  dissipate  all  benevo- 
lent anxiety  regarding  her.  The  German  people  are  not 
crushed  beneath  the  weight  of  expenditures  and  taxes; 
they  are  not  hanging  on  the  edge  of  a  precipice;  they 
are  not  hastening  towards  exhaustion  and  ruin.  Quite 
the  contrary :  public  and  private  wealth  is  increasing ; 
the  general  welfare  and  standard  of  life  are  rising  from 
year  to  year.  As  for  compulsory  military  service,  which 
is  intimately  associated  with  these  questions,  the  German 
does  not  regard  it  as  a  heavy  burden,  but  as  a  sacred 
and  patriotic  duty,  to  the  performance  of  which  he  owes 
his  existence,  his  prosperity,  his  future."  He  then  took 
up  Colonel  Gilinsky's  propositions  and  arguments,  declar- 
ing them  to  be  not  quite  consistent  with  each  other. 

"On  the  one  hand,"  he  said,  "it  is  feared  that  excessive  armaments 
may  cause  war;  on  the  other,  that  the  exhaustion  of  economic  forces 
will  make  war  impossible.  As  for  me,  I  have  too  much  confidence 
in  the  wisdom  of  sovereigns  and  nations  to  share  such  fears. 

"On  the  one  hand,  it  is  pretended  that  only  those  measures  are 
necessary  which  have  long  been  practiced  in  some  countries  and  which, 
therefore,  present  no  technical  difficulties;  on  the  other  hand,  it  is 
said  that  this  is  precisely  the  most  difficult  problem  to  solve,  and  that 
for  it  a  supreme  effort  is  necessary.  I  am  entirely  of  the  latter  opin- 
ion. We  shall  encounter,  in  fact,  insurmountable  obstacles,  —  diffi- 
culties which  may  be  called  technical  in  a  little  larger  use  of  the  term. 

"I  believe  that  the  question  of  troops  cannot  be  considered  entirely 
alone,  separated  from  a  crowd  of  other  questions  to  which  it  is  almost 
subordinate.  Such  are,  for  example,  the  extent  of  public  instruction, 
th?  length  of  active  service,  the  number  of  established  regiments,  the 
troops  in  the  army  units,  the  number  and  duration  of  enrollments 
under  the  flag  (that  is  to  say,  the  military  obligations  of  retired  sol- 


ARMAMENTS 


59 


diers),  the  location  of  the  army  corps,  the  railway  system,  the  number 
and  situation  of  fortified  places.  In  a  modern  army,  all  such  things 
are  connected  with  each  other  and  form,  together,  the  national  de- 
fense which  each  people  has  organized  according  to  its  character,  its 
history,  and  its  traditions,  taking  into  account  its  economic  resources, 
its  geographical  situation,  and  the  duties  which  devolve  upon  it. 
I  believe  that  it  would  be  very  difficult  to  replace  this  eminently  na- 
tional task  by  an  international  agreement.  It  would  be  impossible 
to  determine  the  extent  and  the  force  of  a  single  part  of  this  compli- 
cated machinery. 

"Again,  mention  has  been  made  only  of  troops  maintained  in 
mother  countries,  and  Colonel  Gilinsky  has  given  us  the  reason  for 
this;  but  there  are  territories  which  are  not  part  of  the  mother  coun- 
try, but  are  so  close  to  it  that  troops  stationed  in  them  will  certainly 
participate  in  a  continental  war.  And  the  countries  beyond  the 
seas?  How  can  they  permit  a  limitation  of  their  troops  if  colonial 
armies,  which  alone  menace  them,  are  left  outside  of  the  agreement? 

"Gentlemen,  I  have  restricted  myself  to  indicating,  from  a  general 
point  of  view,  some  of  the  reasons  which,  to  my  mind,  are  opposed 
to  the  realization  of  the  desire,  which  is  surely  unanimous,  of  reaching 
an  agreement  on  the  subject  before  us." 

Colonel  Gilinsky  replied  that  it  would  be  impossible 
for  him  to  answer  the  arguments  of  a  domestic  nature 
advanced  by  Colonel  von  Schwarzhoff;  but  that  if  an 
agreement  could  be  arrived  at,  he  believed  it  would 
be  possible  for  states  to  make  the  necessary  arrange- 
ments for  enforcing  it.  As  to  the  wealth  of  nations, 
he  had  not  said  that  all  countries  are  being  impoverished, 
for  there  are  some  which  are  progressing  in  spite  of  mili- 
tary expenditures ;  but  these  expenditures  are  certainly 
not  an  aid  to  public  prosperity.  Increasing  armaments  are 
not  of  a  nature  to  augment  the  riches  of  states,  although 
some  individuals  may  profit  by  them.  He  willingly 
admitted  that  railroads  have  a  great  influence  on  the 
defense  of  a  country ;  an  army  should  be  much  larger  if  it 


60  THE  TWO   HAGUE   CONFERENCES 

be  unconnected  with  the  interior  by  numerous  railways. 
It  is  precisely  for  this  reason  that  a  country  rich  in  rail- 
roads may  reduce  its  army,  or  at  least  not  increase  it. 
As  for  countries  beyond  the  seas,  he  admitted  exceptions, 
notably  among  those  whose  army  is  small  or  in  process 
of  formation;  what  is  necessary  here  is  not  to  adopt 
a  general  rule  covering  everything,  but  to  find  a  formula 
satisfactory,  if  not  to  every  one,  at  least  to  a  large 
number. 

Colonel  von  Schwarzhoff  replied  that  he  feared  lest  he 
had  been  misunderstood;  he  had  not  denied  that  another 
use  might  be  found,  perhaps  more  humanitarian,  for  the 
money  spent  on  armaments.  He  merely  wanted  to  reply 
to  language  which  perhaps,  and  certainly  in  his  opinion, 
was  a  trifle  exaggerated.  The  number  of  troops  alone 
does  not  afford  a  proper  basis  of  comparison  for  the 
strength  of  armies,  but  there  are  a  number  of  other  things 
to  take  into  consideration.  While  maintaining  the  num- 
ber of  its  troops,  any  power  whatever  can  increase  its 
military  strength.  The  equilibrium  which  is  supposed 
to  exist  at  present  would  then  be  destroyed;  for  its  res- 
toration, it  is  necessary  that  the  other  powers,  which 
perhaps  would  not  be  able  to  employ  the  same  measures, 
should  be  free  to  choose  among  all  the  measures  acces- 
sible to  them. 

At  the  conclusion  of  this  debate  between  the  Russian 
and  German  colonels,  two  delegates  from  the  Nether- 
lands replied  to  some  of  Colonel  von  Schwarzhoff's  argu- 
ments. M.  van  Karnebeek  emphasized  the  importance  of 
the  question  of  increasing  armaments  and  the  desirability 
of  a  discussion  of  it  by  the  conference,  notwithstanding 
its  technical  difficulties. 


ARMAMENTS  6 1 

"Of  course,"  he  continued,  "it  may  be  that  in  some  countries 
military  expenditures  press  less  heavily  than  elsewhere;  but  it  must 
be  recognized  that  the  sums  devoted  to  armaments  might,  even  in 
those  countries,  be  employed  more  usefully  for  a  different  purpose. 
There  are  other  countries  where  people  do  not  take  the  point  of  view 
of  Colonel  von  Schwarzhoff,  and  where  military  expenditures  are 
evidently  a  burden  on  national  prosperity.  The  question  should 
not  be  considered  only  from  the  point  of  view  of  the  country  whose 
prosperity,  apparently,  has  not  yet  suffered  because  of  armaments; 
but  even  in  these  countries,  it  may  be  questioned  whether  such  ex- 
penditures are  really  necessary  for  the  national  defense,  or  if  they  are 
not  rather  the  result  of  international  competition  in  this  direction 
Now,  the  fundamental  idea  of  the  Russian  propositions  is  precisely 
that  the  burden  of  armaments  may  be  reduced  if  an  agreement  can 
be  secured  for  reducing  this  international  competition.  But  it  is 
necessary  to  consider  the  question  from  still  another  point  of  view. 
There  is,  for  the  several  countries,  not  only  an  external  danger  to  be 
foreseen,  but  they  have  also  to  take  account  of  opinion  at  home  which, 
in  time,  may  also  become  a  peril.  Enormous  military  expenditures 
which  burden  nations  may  furnish  dangerous  weapons  against  the 
established  social  order.  And  if,  because  of  technical  difficulties,  we 
too  readily  declare  ourselves  incapable  of  endeavoring  to  reach  a 
solution  of  this  important  question,  we  might  play  the  game  of  those 
who  find  it  to  their  advantage  to  agitate  against  the  existing  order 
of  things." 

General  Poortugael  replied  briefly  to  Colonel  von 
Schwarzhoff,  and,  while  congratulating  him  on  Germany's 
alleged  favorable  condition  in  regard  to  military  expendi- 
tures, said  that  it  was  not  the  present  but  the  future  that 
he  had  in  mind  when  he  made  his  first  address:  "I  used 
the  words,  'in  continuing  in  this  path,'  and  I  believe  now 
and  always  that  this  path  is  dangerous  even  for  the  wealth- 
iest states." 

Another  feature  of  this  animated  debate  was  the  dec- 
laration of  Dr.  Standoff,  of  Bulgaria,  that  "armed  peace 


62  THE  TWO   HAGUE  CONFERENCES 

is  ruinous  for  small  states,  whose  needs  are  numerous, 
and  who  have  everything  to  gain  by  investing  their  means 
in.  the  development  of  industry  and  agriculture,  and  in 
the  requisites  of  progress."  M.  Bourgeois,  of  France, 
gracefully  acknowledged  the  force  of  Dr.  Standoff's 
remarks  by  moving  that  the  small  states  should  be  rep- 
resented, as  well  as  the  large  ones,  on  the  committees 
which  should  investigate  and  report  upon  the  subject. 
The  commission  then  decided  that  each  of  its  subcom- 
missions  should  appoint  technical  committees,  one  mili- 
tary and  one  naval,  to  consider  the  question. 

The  military  committee  was  composed  of  Colonels 
Gilinsky  and  Schwarzhoff,  and  military  representatives 
from  five  other  large  powers  and  two  small  powers.1 
This  committee  met  twice,  and  after  a  thorough  exchange 
of  views  —  of  which  no  minutes  were  kept  —  made  the 
following  report  to  the  commission  at  its  next  session, 
June  30: 

"The  members  of  the  committee  charged  with  the  examination  of 
the  propositions  of  Colonel  Gilinsky,  relating  to  the  first  topic  of 
Count  Mouravieff's  circular,  have  met  twice.  With  the  exception 
of  Colonel  Gilinsky,  they  have  decided  unanimously:  first,  that  it 
would  be  very  difficult  to  fix,  even  for  a  term  of  five  years,  the  number 
of  troops,  without  regulating  at  the  same  time  other  elements  of  the 
national  defense;  second,  that  it  would  be  no  less  difficult  to  regulate 
by  an  international  agreement  the  elements  of  this  defense,  organized 
in  each  country  upon  very  different  principles.  Hence,  the  committee 
regrets  its  inability  to  accept  the  proposition  made  in  the  name  of 

'The  members  of  this  committee  were  as  follows:  Colonel  von  Schwarz- 
hoff, of  Germany;  Captain  Crozier,  of  the  United  States;  General  Mounier, 
of  France;  Colonel  Gilinsky,  of  Russia;  General  Sir  John  Ardagh,  of  Great 
Britain;  Lieutenant  Colonel  von  Khuepach,  of  Austria ;  General  Zuccari,  of 
Italy;  Captain  Brandstrom,  of  Sweden;  and  Colonel  Coanda,  of  Roumania- 
As  to  Captain  Crozier's  membership,  see  page  67. 


ARMAMENTS  63 

the  Russian  government.  The  majority  of  its  members  believe  that 
a  more  thorough  study  of  the  question  by  the  governments  themselves 
would  be  desirable." 

After  this  report  was  read,  no  one  responded  to  the 
president's  invitation  to  discuss  it,  and  he  therefore  said 
that  he  considered  the  silence  of  the  assembly  as  a  complete 
approval  of  it,  and  that  under  the  circumstances  it  was 
not  necessary  to  take  a  vote  upon  it. 

But  the  question  was  not  to  be  thus  dropped  in  silence. 
Baron  de  Bildt,  of  Sweden  and  Norway,  stated  that  the 
Russian  propositions  were  unacceptable  to  his  country 
only  because  of  their  form  and  not  because  of  their  object, 
and  concluded  an  eloquent  address  with  the  words : 

"We  have  therefore  not  been  able  to  vote  for  the  Russian  proposi- 
tion as  it  has  been  formulated,  and  I  state  this  fact  with  sincere  regret 
—  I  will  say  more  —  with  genuine  sorrow.  For,  gentlemen,  we  are 
about  to  terminate  our  labors,  recognizing  that  we  have  been  confronted 
with  one  of  the  most  important  problems  of  the  century,  and  that  we 
have  accomplished  very  little  towards  its  solution.  Let  us  not  in- 
dulge in  illusions.  When  the  results  of  our  deliberations  shall  be- 
come known,  there  will  arise,  notwithstanding  all  that  has  been  done 
for  arbitration,  the  Red  Cross,  etc.,  a  great  cry:  ' It  is  not  enough  ! ' 
And  this  cry,  'It  is  not  enough,'  most  of  us  must  conscientiously 
acknowledge  to  be  just.  Our  consciences,  it  is  true,  may  also  tell  us 
in  consolation  that  we  have  done  our  duty,  since  we  have  faithfully 
followed  our  instructions.  But  I  venture  to  say  that  this  duty  is  not 
fulfilled  and  that  there  yet  remains  something  else  for  us  to  accom- 
plish. 

"Permit  me  to  explain.  The  Czar's  proposal  [as  to  armaments] 
has  been  strewn  with  all  the  flowers  of  rhetoric  by  men  much  more 
eloquent  than  I.  It  will  suffice  for  me  to  say  that,  while  his  idea  is 
grand  and  beautiful,  and  while  it  responds  to  a  desire  felt  by  thou- 
sands upon  thousands  of  men,  this  also  is  true :  it  can  not  die.  If  the 
Czar  will  only  add  to  the  nobility  of  heart  and  generosity  of  spirit, 
of  which  he  has  given  proof,  the  virtue  of  perseverance,  the  triumph 


64  THE  TWO   HAGUE   CONFERENCES 

of  his  labors  is  assured.  He  has  received  from  Providence  not  only 
the  gift  of  power,  but  also  that  of  youth.  If  the  generation  to  which 
we  belong  is  not  destined  to  accomplish  the  task,  he  may  count  upon 
that  which  is  coming  soon  to  take  our  places.  The  future  belongs  to 
him.  But,  meanwhile,  all  of  us  who  desire  to  be,  each  in  his  little 
sphere  of  activity,  his  humble  and  faithful  colaborers,  have  the  duty 
of  searching  for,  and  explaining  to  our  governments  with  entire  frank- 
ness and  complete  veracity,  each  imperfection,  each  omission,  which 
may  occur  in  the  preparation  or  in  the  execution  of  this  work;  and  of 
seeking  with  tenacity  the  means  of  doing  better  and  doing  more, 
whether  these  means  be  found  in  new  conferences,  in  direct  nego- 
tiations, or  with  all  simplicity  in  the  setting  of  a  good  example. 
This  is  the  duty  which  is  left  for  us  to  fulfill." 

This  speech  was  warmly  applauded,  and  under  the 
influence  of  its  profound  impression,  M.  Bourgeois,  of 
France,  made  a  forceful  address,  in  which  he  said : 

"This  commission  certainly  does  not  wish  to  remain  indifferent 
to  the  question  of  principle  presented  to  the  civilized  world  by  the 
generous  initiative  of  His  Majesty  the  Emperor  of  Russia.  It  seems 
to  me  necessary  that  an  additional  resolution  be  adopted  by  us  to 
express  more  precisely  the  sentiment  which  animated  the  preceding 
speaker,  and  which  should  make  us  all  desire  that  the  work  com- 
menced should  not  be  abandoned.  This  question  of  principle  may  be 
stated  in  very  simple  words :  '  Is  it  desirable  to  restrict  the  military  ex- 
penses which  burden  the  world?  '  ...  We  shall  find,  I  hope,  a  gen- 
eral formula  which,  recognizing  the  difficulties  of  which  we  are  all 
aware,  shall  at  least  express  this  thought,  that  the  limitation  of  arma- 
ments will  be  a  blessing  to  mankind,  and  which  shall  give  to  the  gov- 
ernments the  moral  support  necessary  to  enable  them  to  pursue  this 
noble  object.  ...  If  sad  necessity  obliges  us  to  renounce  for  the 
present  a  direct  and  positive  agreement  on  this  proposition,  we  should 
endeavor  to  prove  to  public  opinion  that  we  have  at  least  sincerely 
examined  the  problem  presented  to  us.  We  shall  not  have  labored  in 
vain  if,  in  a  formula  of  general  scope,  we  indicate  the  goal  towards 
which  we  desire  unanimously,  I  hope,  to  see  all  civilized  peoples 
advance." 


ARMAMENTS  65 

At  the  request  of  the  president;  M.  Bourgeois  then 
presented  in  writing  his  proposition,  which  was  as  follows : 

"The  commission  believes  that  a  limitation  of  the 
military  expenses  which  now  burden  the  world  is  greatly 
to  be  desired  in  the  interests  of  the  progress  of  the  material 
and  moral  well-being  of  mankind."  This  proposition 
was  adopted  by  acclamation ;  and  the  commission  then 
turned  to  the  consideration  of  the  question  of  naval 
armaments. 

The  second  subcommission  of  the  I  Commission  decided, 
at  its  meeting  on  June  26,  to  discuss  the  question  of  naval 
armaments  before  referring  it  to  a  special  committee. 
Captain  Scheme  explained  the  Russian  propositions,1  and 
stated  the  proposed  agreement  to  be  that  "each  govern- 
ment shall  have  the  right  of  fixing  its  budget  at  the  point 
which  seems  to  it  desirable,  but  once  this  budget  is  fixed 
and  communicated,  the  total  sum  cannot  be  increased 
for  a  term  of  three  years,  dating  from  the  time  when  the 
agreement  goes  into  force."  The  representative  of  the 
Netherlands  alone  expressed  approval  of  the  proposition, 
while  the  delegates  from  eight  countries,  large  and  small, 
advanced  various  objections  to  it.  Among  these  objec- 
tions were  the  facts  that  parliaments  shared  with  execu- 
tives the  control  of  budgets;  that  some  parliaments  were 
renewed  annually,  or  within  very  short  periods;  that  it 
would  be  very  difficult  for  one  government  to  decide  upon 
the  size  of  budgets,  since  it  would  be  ignorant  of  the  size 
of  the  budget  which  other  governments  would  adopt; 
and  that  this  would  lead  to  the  fixing  of  a  very  large 
budget,  and  might  lead  to  the  building  of  even  more  ships 
than  would  have  been  built  if  the  international  agreement 

1  See  page  57. 


66  THE  TWO   HAGUE   CONFERENCES 

had  not  been  made.  The  subcommission  rejected  (by 
a  vote  of  five  to  five,  with  five  abstentions)  a  motion  to 
refer  the  problem  to  the  various  governments  for  a  thor- 
ough study  which  should  enable  it  to  be  solved  at  a  later 
conference.  It  then  adopted  a  motion  of  Captain  Scheme 
(by  a  vote  of  seven  ayes,  one  no,  and  seven  abstentions) 
that  the  delegates  be  asked  to  secure  instructions  from 
their  governments,  as  soon  as  possible,  so  that  the  Russian 
propositions  might  be  decided  by  the  existing  conference. 

This  report  was  presented  to  the  commission  at  its 
reunion  of  June  30,  and  it  was  decided  that  the  time  before 
the  end  of  the  conference  would  be  too  short  for  the  dele- 
gates to  procure  instructions  from  their  governments.  It 
was  therefore  voted,  without  final  opposition,  although 
Captain  Scheme  resisted  the  motion  for  a  time,  that  the 
question  of  naval  armaments,  like  that  of  military  arma- 
ments, should  be  referred  to  the  governments  for  thorough 
study,  and  that  M.  Bourgeois's  motion  was  also  equally 
applicable  to  armaments  on  both  land  and  sea. 

The  conference,  at  its  sixth  session,  on  the  21st  of  July, 
adopted  unanimously  and  without  discussion  these  reports 
of  the  commission,  and  thus  the  question  of  armaments 
was  finally  disposed  of. 

The  failure  of  the  conference  to  propose  any  answer  to 
what  was  regarded  as  the  burning  question  of  armaments 
and  as  the  prime  cause  of  its  convocation  was  widely 
commented  upon  as  evidence  of  the  failure  of  the  confer- 
ence as  a  whole.  But  its  leaders  denied  this  by  pointing 
to  the  other  positive  work  of  the  conference,  and  especially 
to  its  work  in  behalf  of  arbitration.  And  they  insisted 
with  great  force  that  until  arbitration,  or  some  other  peace- 
ful measure,  is  adopted  for  the  settlement  of  international 


ARMAMENTS  67 

disputes,  the  ordeal  of  battle  will  continue  to  be  appealed 
to,  and  the  governments  will  consider  it  their  duty  to  pre- 
pare for  that  ordeal  by  perfecting  their  armaments.  On 
the  other  hand,  the  question  of  increasing  armaments 
became  more  prominent  than  ever,  in  the  years  following 
the  conference,  because  of  the  enormous  accessions  almost 
universally  made  to  them,  and  a  widespread  determina- 
tion arose  that  it  should  be  definitely  answered  in  the  next 
conference. 

As  to  the  precise  part  played  by  the  delegates  from  the 
United  States  in  the  disposition  of  the  question  of  arma- 
ments, there  is  a  discrepancy  in  the  records.  The  official 
rapporteur  of  the  I  Commission,  M.  van  Karnebeek,  states 
in  his  report  to  the  conference,  which  was  unanimously 
adopted  (Captain  Crozier  being  present),  that  Captain 
Crozier,  of  the  United  States,  was  one  of  the  committee  of 
experts  which  rejected  unanimously  Colonel  Gilinsky's 
proposals  for  the  restriction  of  armaments;  but  the 
compte-rendu  of  the  subcommission's  meeting,  in  which 
the  committee  was  appointed,  does  not  include  Captain 
Crozier  as  one  of  the  committee.  In  a  subsequent  reunion 
of  the  commission,  M.  Beldiman,  of  Roumania,  proposed 
that  the  names  of  the  delegates  who  took  part  in  the  work 
of  the  technical  committee  be  included  in  the  report  to 
the  conference.  Captain  Crozier  opposed  this  proposition, 
and  stated  that  the  members  of  that  committee  had  taken 
part  in  its  work,  not  as  delegates  of  governments,  but  as 
representatives  of  the  subcommission  in  their  quality  as 
individuals  and  as  experts.  The  representatives  of  Sweden 
and  Turkey  supported  Captain  Crozier's  view,  ■  but  M. 
Beldiman's  motion  was  adopted  by  a  vote  of  twelve  to  ten 
(with  one  abstention),  and  the  rapporteur  mentioned  in 


68  THE   TWO   HAGUE   CONFERENCES 

his  report  to  the  conference  the  names  of  the  members 
of  the  committee,  including  among  them,  as  stated  above, 
that  of  Captain  Crozier. 

Immediately  after  this  episode  in  the  reunion  of  the 
commission,  Captain  Mahan,  of  the  United  States  Navy, 
who,  in  the  meeting  of  the  naval  subcommission,  had 
insisted  on  the  difficulties  of  the  Russian  propositions, 
made  the  following  declaration : 

"The  delegation  of  the  United  States  of  America  have  concurred 
in  the  conclusion  upon  the  first  clause  of  the  Russian  letter  of  Decem- 
ber 30,  1898,  presented  to  the  conference  by  the  I  Commission, 
namely :  that  the  proposals  of  the  Russian  representatives,  for  fixing 
the  size  of  effective  forces  and  of  budgets,  military  and  naval,  for 
five  and  three  years,  can  not  now  be  accepted,  and  that  a  more  pro- 
found study  on  the  part  of  each  state  concerned  is  to  be  desired. 
But,  while  thus  supporting  what  seemed  to  be  the  only  practicable 
solution  of  a  question  submitted  to  the  conference  by  the  Russian 
letter,  the  delegation  wishes  to  place  upon  the  record  that  the  United 
States,  in  so  doing,  does  not  express  any  opinion  as  to  the  course  to 
be  taken  by  the  states  of  Europe. 

"This  declaration  is  not  meant  to  indicate  mere  indifference  to  a 
difficult  problem,  because  it  does  not  affect  the  United  States  immedi- 
ately, but  expresses  a  determination  to  refrain  from  enunciating  opin- 
ions upon  matters  which,  as  concerning  Europe  alone,  the  United 
States  has  no  claim  to  enter.  The  words  drawn  up  by  M.  Bourgeois, 
and  adopted  by  the  I  Commission,  received  also  the  hearty  con- 
currence of  this  delegation  because,  in  so  doing,  it  expresses  the  cor- 
dial interest  and  sympathy  with  which  the  United  States,  while  care- 
fully abstaining  from  anything  that  might  resemble  interference, 
regards  all  movements  that  are  thought  to  tend  to  the  welfare  of 
Europe.  The  military  and  naval  armaments  of  the  United  States  are 
at  present  so  small,  relatively  to  the  extent  of  territory  and  to  the 
number  of  the  population,  as  well  as  in  comparison  with  those  of 
other  nations,  that  their  size  can  entail  no  additional  burden  of 
expense  upon  the  latter,  nor  can  even  form  a  subject  for  profitable 
mutual  discussion." 


ARMAMENTS  69 

This  declaration  is  an  especially  interesting  one  from 
the  point  of  view,  both  of  the  traditional  and  the  subse- 
quent policy  of  the  United  States  in  regard  to  European 
affairs,  and  of  the  subsequent  development  of  its  military 
and  naval  armaments. 

b.   THE   CONFERENCE   OF  1907 

After  the  adjournment  of  the  first  conference,  it  was 
argued  that  that  body  had  taken  up  the  question  of  arma- 
ments "at  the  wrong  end";  that  it  had  devoted  itself 
chiefly  to  the  balancing  of  ship  against  ship  and  tonnage 
against  tonnage,  and  had  consequently  fallen  into  a  hope- 
less technical  tangle  and  mathematical  snarl;  that  what 
was  needed  was  a  thorough  study  of  the  economic  and 
political  aspects  of  the  question.  But  this  study,  recom- 
mended by  the  conference  itself,  was  not  entered  upon  by 
the  governments;  and  statesmen  continued  to  suggest 
mathematical  solutions  of  the  problem,  such  as  the  re- 
duction of  the  size  of  battle  ships,  or  the  restriction  of 
military  budgets  for  a  term  of  five  years  to  the  amounts 
expended  during  the  preceding  five  years. 

The  Russian  programme  for  the  second  conference 
alluded  to  the  subject  of  armaments,  but  barred  it  out  from 
consideration,  in  the  following  words :  "Believing  that  there 
is  opportunity  at  present  for  proceeding  with  an  examina- 
tion of  only  those  questions  which  are  pressed  forward 
in  a  particular  manner  by  the  experience  of  the  last  few 
years,  without  taking  up  those  which  may  concern  the 
limitation  of  military  or  naval  forces,  the  Imperial  Gov- 
ernment proposes,  etc."  —  This  omission  has  been  ascribed 
to  the  almost  unanimous  opposition  of  the  first  conference 


70  THE   TWO   HAGUE   CONFERENCES 

to  Russia's  plans  for  the  restriction  of  armaments,  to  Rus- 
sia's belief  that  its  losses  in  armament  during  the  Russo- 
Japanese  War  should  be  more  than  made  good,  and  to  the 
fear  that  to  introduce  the  subject  in  the  second  conference 
would  be  productive  of  discord  rather  than  of  good  results. 
This  last  explanation  was  given  by  Russia's  first  delegate, 
President  Nelidow,  in  his  address  to  the  conference  when 
the  subject  was  introduced.  After  mentioning  the  various 
wars  which  have  occurred  since  the  first  conference,  and 
the  great  increase  of  armaments,  instead  of  the  study  of 
their  limitation  recommended  by  that  conference,  which 
the  various  governments  have  undertaken,  M.  Nelidow 
said: 

"It  was  in  consideration  of  these  circumstances,  gentlemen,  that 
the  Russian  Government  omitted  to  mention  this  time,  in  the  pro- 
gramme which  it  proposed  for  the  conference,  the  limitation  of  arma- 
ments. It  believed  that  this  question  was  not  ready  to  be  considered 
with  good  results ;  and  it  did  not  wish  to  provoke  discussions  which, 
as  the  experience  of  1899  showed,  might  only  be  opposed  to  the  object 
to  be  striven  for  in  common,  and  only  accentuate  discord  between  the 
powers  by  causing  irritating  debates." 

But  for  whatever  reasons  the  Russian  government  had 
held  back  in  the  path  which  it  had  been  the  first  to  take, 
the  governments  of  other  countries  were  urged  forward 
upon  it  by  the  determined  demand  of  their  people.  This 
demand  was  made  with  preeminent  force  in  Great  Britain ; 
and  the  Liberal  Government  there  had  committed  itself 
willingly,  and  enthusiastically  on  the  part  of  the  prime 
minister,  to  its  realization.  Hence,  both  before  and  at 
the  opening  of  the  conference,  Great  Britain  made  a  reso- 
lute stand  for  the  right  of  introducing  the  topic  for  discus- 
sion, even  though  it  had  been  omitted  from  the  official 


ARMAMENTS  7 1 

programme.  The  United  States  joined  Great  Britain  in 
this  determination,  and  France,  Spain,  and  Italy  ex- 
pressed their  willingness  to  discuss  it  if  introduced ;  but 
Japan,  Austria,  Germany,  and  Russia  gave  notice  that 
they  would  not  participate  in  discussing  the  question,  for 
which,  to  quote  the  words  of  Chancellor  von  Biilow,  of  Ger- 
many, "no  concrete,  serious,  practical,  realizable  answer 
was  presented." 

Despite  the  expressed  and  powerful  opposition  to  having 
the  question  discussed,  the  delegations  of  Great  Britain  and 
the  United  States,  at  the  second  plenary  session  —  the  first 
business  one — reserved  the  right  of  presenting  it,  "or  any 
other  question"  not  on  the  programme. 

More  than  eight  weeks  then  elapsed,  during  which 
time  no  visible  step  was  taken  towards  raising  the  question, 
although  there  were  many  rumors  as  to  what  was  being 
done  or  attempted  behind  the  scenes.  During  this  time 
the  United  States  delegation  was  doing  its  utmost  to  pro- 
mote three  projects  in  which  it  was  vitally  interested,  and 
was  apparently  awaiting  the  lead  of  Great  Britain  in  the 
matter  of  armaments.  And  in  England  a  lively  agita- 
tion, in  which  the  Interparliamentary  Union  took  part 
together  with  numerous  peace  societies,  was  set  on  foot 
to  urge  the  British  delegation  forward.  At  last,  in  the 
fourth  plenary  session,  August  17,  Sir  Edward  Fry,  Great 
Britain's  first  delegate,  took  the  matter  up.  After  quoting 
the  memorable  warning  as  to  increasing  armaments  and 
their  results  which  was  voiced  in  the  Russian  rescript  of 
August,  1898,  Sir  Edward  Fry  said: 

"These  words,  so  eloquent  and  so  true  when  they  were  first  writ- 
ten, are  to-day  still  more  real  and  true.  For,  Mr.  President,  since 
that  time  military  expenses,  alike  for  armies  and  for  navies,  have 


72  THE   TWO   HAGUE   CONFERENCES 

considerably  increased.  Thus,  according  to  the  most  exact  informa- 
tion which  I  have  received,  these  expenditures  attained  in  1898  (that 
is,  the  year  immediately  preceding  the  first  conference  at  The  Hague) 
a  total  of  more  than  251  millions  of  pounds  sterling  for  the  countries 
of  Europe,  —  with  the  exception  of  Turkey  and  Montenegro,  about 
which  I  have  received  no  information,  —  the  United  States  of  Amer- 
ica, and  Japan ;  whereas  the  same  expenditures  by  the  same  countries 
in  1906  exceeded  a  total  of  320  millions  of  pounds  sterling.  .  .  . 

"Such  are  the  excessive  expenditures  which  could  be  devoted  to 
better  purposes ;  such,  Mr.  President,  is  the  burden  under  which  our 
peoples  groan;  such  is  the  Christian  peace  of  the  civilized  world 
in  the  Twentieth  Century.  I  will  not  speak  to  you  of  the  economic 
side  of  the  question,  of  the  great  number  of  men  whom  these  prepara- 
tions for  war  compel  to  abandon  their  employments,  and  of  the 
prejudice  which  this  state  of  things  conveys  to  prosperity  in  general. 
You  know  better  than  I  this  side  of  the  question. 

"I  am  quite  sure,  then,  that  you  will  agree  with  me  in  the  assertion 
that  the  realization  of  the  wish  expressed  by  the  Emperor  of  Russia 
and  by  the  first  conference  would  be  a  great  blessing  to  all  mankind. 
Is  this  wish  attainable  ?  That  is  a  question  to  which  I  can  not  give 
you  a  categorical  reply.  I  can  only  assure  you  that  my  government 
is  a  convinced  partisan  of  these  high  aspirations,  and  that  it  charges 
me  to  summon  you  to  work  and  toil  together  for  the  fulfillment  of  this 
noble  desire. 

'Tn  the  olden  days  of  antiquity,  Mr.  President,  men  dreamed  of 
a  golden  age  which  was  said  to  have  exisced  on  earth  in  times  long 
before.  But  in  all  centuries  and  among  all  nations,  poets,  sibyls, 
prophets,  and  all  noble  and  inspired  souls  have  nourished  the  hope 
that  that  golden  age  would  return  in  the  form  of  the  reign  of  universal 
peace.  'Ultima  Cumasi  venit  jam  carminis  astas  Magnus  ab  integro 
saeculorum  nascitur  ordo  Jam  redit  et  virgo:  redeunt  Saturnia  regna.' 

"Such  was  the  dream  of  the  Latin  poet  for  his  age ;  but  to-day  the 
belief  in  the  solidarity  of  the  human  race  is  spread,  more  than  ever 
before,  over  all  the  earth.  It  is  this  belief  which  has  made  possible 
the  convocation  of  the  present  conference;  and  it  is  in  the  name  of 
this  belief  that  I  beseech  you  not  to  separate  without  having  demanded 
that  the  governments  of  the  world  shall  devote  themselves  very  seri- 
ously to  the  question  of  military  expenditures. 


ARMAMENTS  73 

"My  government  recognizes  that  it  is  the  duty  of  each  country 
to  protect  itself  against  its  enemies,  and  against  the  dangers  which 
may  threaten  it,  and  that  each  government  has  the  right  and  the  duty 
of  deciding  what  is  proper  for  its  country  to  do  for  this  purpose.  It 
is  then  only  by  good  will,  the  free  will  of  each  government,  acting 
through  its  own  head  for  the  happiness  of  its  country,  that  the  object 
of  our  desires  can  be  attained. 

"The  government  of  His  Britannic  Majesty,  recognizing  that  sev- 
eral powers  desire  to  restrict  their  military  expenditures,  and  that  it  is 
by  the  independent  action  of  each  power  that  this  result  can  be 
attained,  has  believed  it  to  be  its  duty  to  seek  for  the  means  of  fulfilling 
these  aspirations.  Hence  my  government  has  authorized  us  to  make 
the  following  declaration:  'The  Government  of  Great  Britain  will 
be  ready  to  communicate  each  year  to  the  powers  that  will  do  the 
same,  its  plan  of  constructing  new  war  ships  and  the  expenditures 
which  this  plan  will  require.  Such  an  exchange  of  information  will 
facilitate  an  exchange  of  views  between  the  governments  on  the  reduc- 
tions which  by  common  agreement  may  be  effected.  The  Britannic 
Government  believes  that  in  this  way  an  understanding  may  be 
reached  on  the  expenditures  which  the  states  that  agree  to  pursue  this 
course  will  be  justified  in  entering  upon  their  budgets.' 

"In  conclusion,  then,  Mr.  President,  I  have  the  honor  of  proposing 
the  adoption  of  the  following  resolution:  The  conference  confirms 
the  resolution  adopted  by  the  Conference  of  1899  in  regard  to  the 
restriction  of  military  expenditures;  and,  since  military  expenditures 
have  increased  considerably  in  nearly  every  country  since  the  said 
year,  the  conference  declares  that  it  is  highly  desirable  to  see  the 
governments  take  up  the  serious  study  of  this  question." 

On  the  conclusion  of  Sir  Edward  Fry's  ten  minutes 
address,  President  Nelidow  read  the  following  letter  from 
Ambassador  Choate,  of  the  United  States : 1 

"In  the  course  of  the  negotiations  which  preceded  the  present 
conference,  the  Government  of  the  United  States  of  America  thought 
that  it  was  its  duty  to  reserve  the  right  of  proposing  here  the  important 

1  This  letter,  translated  into  French  and  dated  at  The  Hague,  August  17, 
was  sent  to  the  president  of  the  conference. 


74  THE   TWO   HAGUE   CONFERENCES 

subject  of  the  limitation  of  armaments,  in  the  hope  that  this  might 
promote  somewhat  the  realization  of  the  exalted  ideal  which  inspired 
the  Emperor  of  Russia  in  his  first  appeal. 

"While  regretting  that  more  progress  in  the  direction  indicated  by 
His  Imperial  Majesty  could  not  be  made  at  this  time,  we  are  happy 
to  believe  that  there  is  not  the  least  intention  on  the  part  of  the  nations 
to  abandon  their  effort ;  and  we  ask  permission  to  express  our  sym- 
pathy for  the  views  which  have  been  stated  by  His  Excellency  the 
First  Delegate  of  the  British  Delegation,  and  to  adhere  to  the  proposi- 
tion which  he  has  just  made." 

When  this  letter  had  been  read,  M.  Bourgeois,  of 
France,  arose  and  said  that  he  gladly  adhered  to  the 
"  proposition  made  by  Great  Britain  and  sustained  by  our 
colleagues  of  the  United  States  of  America.  And  it  will 
be  permitted,  perhaps,  to  the  first  delegate  of  the  French 
Republic,  in  view  of  the  fact  that  in  1899  he  was  the 
mover  of  the  first  conference's  resolution,  to  express  his 
confidence  that  from  this  time  until  the  next  Peace  Con- 
ference the  study  to  which  the  conference  invites  the  gov- 
ernments will  be  resolutely  pursued." 

President  Nelidow  then  read  a  letter  from  the  Spanish 
delegation  expressing  similar  sentiments;  and  then  the 
treaty  for  mutual  disarmament  concluded  between  Ar- 
gentina and  Chili  five  years  before,  in  response  to  the 
resolution  of  the  Conference  of  1899,  was  read  and  vigor- 
ously applauded. 

M.  Nelidow,  in  closing  the  "discussion"  of  the  topic, 
explained,  as  stated  above,  why  Russia  had  omitted  it 
from  the  conference's  programme,  and  concluded  his 
address  with  the  words : 

"For  my  part,  I  do  not  see  any  other  way  [than  to  pass  the  British 
resolution]  of  testifying  to  the  interest  which  the  powers  have  in  this 
question.     If  it  was  not  ripe  in  1899,  it  is  not  more  so  in  1907.     Noth- 


ARMAMENTS  75 

ing  has  been  done  in  the  matter,  and  the  conference  is  quite  as  little 
prepared  to  deal  with  it  to-day  as  it  was  then.  Any  fruitless  discussion 
of  it  will  only  be  injurious  to  the  cause  which  we  have  had  in  view,  by 
accentuating  differences  of  judgment  on  matters  of  fact,  whereas 
there  is  a  unity  in  general  intentions  which  may  some  day  find  their 
realization. 

"Hence  it  is,  gentlemen,  that  the  proposal  which  the  British  dele- 
gation has  made  to  us  to  confirm  the  resolution  passed  by  the  Con- 
ference of  1899,  in  formulating  again  the  desire  which  was  expressed 
then,  is  the  one  which  corresponds  best  to  the  present  status  of  the 
question  under  consideration,  as  well  as  to  the  interest  which  we  all 
have  in  seeing  it  led  within  that  path  where  the  unanimity  of  the 
powers  alone  can  constitute  a  guarantee  of  its  future  promotion.  And 
it  will  be  an  honor  for  the  second  Peace  Conference  to  have  aided  its 
progress  by  a  favorable  vote.  I  can,  then,  only  applaud  the  English 
initiative  and  urge  you  to  vote  for  the  adoption  of  the  resolution  which 
Sir  Edward  Fry  has  proposed  to  us  by  unanimous  acclaim." 

The  resolution  was  then  adopted  by  acclamation,  and 
the  question  of  armaments  was  answered,  so  far  as  the 
second  Peace  Conference  was  concerned. 


X.   WARFARE   IN   THE   AIR 

a.   THE   CONFERENCE    OF  1899 

Baron  d'Estournelles  de  Constant,  a  delegate  from 
France,  —  that  country  in  which  patriotism  runs  very- 
high,  —  remarked  during  the  debate  on  hurling  pro- 
jectiles or  explosives  from  balloons,  that  "just  as 
steam  and  electricity  have  done  so  much  to  diminish  the 
importance  of  existing  boundary  lines,  the  invention  of 
an  aerial  ship  will  annihilate  them  altogether."  It  has 
also  been  remarked  that  "it  is  probably  the  inventor, 
rather  than  the  statesman  or  the  clergyman,  who  will  put 
an  end  to  the  present  system  of  warfare  on  land  and  sea." 

But  it  was  neither  the  patriotic,  or  national,  motive 
of  preserving  boundary  lines  between  countries,  nor  the 
fear  that  the  development  of  warfare  in  the  air  would 
make  useless  the  great  armaments  on  land  and  sea,  which 
caused  the  conference  to  prohibit  for  five  years  "  the  hurl- 
ing of  projectiles  or  explosives  from  balloons  or  by  other 
new  analogous  means."  Nor  was  it  the  poetic  desire 
that  at  least  one  of  "nature's  four  elements,"  the  air, 
should  be  protected  from  the  fate  which  has  overtaken 
earth,  fire,  and  water,  its  use,  namely,  as  the  element  of 
human  warfare. 

The  motive  which  induced  Russia  to  propose,  and  the 
conference  to  adopt,  the  prohibition,  was  claimed  by 
both  sides  in  the  debate  to  be  a  purely  humanitarian  one. 

76 


WARFARE   IN   THE   AIR  77 

One  view  of  the  humanitarian  phase  of  the  question  was 
expressed  by  General  Poortugael,  of  the  Netherlands, 
who  said : 

"I  know  well  that  when  it  is  necessary  to  make  war,  it  should  be 
made  as  energetically  as  possible ;  but  that  does  not  imply  that  every 
means  should  be  permitted.  .  .  .  Now,  the  progress  of  science,  of 
chemistry  in  particular,  is  such  that  things  quite  incredible  yesterday 
are  realities  to-day.  We  can  foresee  the  use  of  projectiles,  or  other 
things  filled  with  deleterious  gas  and  soporifics  which,  hurled  down 
from  balloons  into  the  midst  of  troops,  would  disable  them  at  once. 
Since  such  attacks  can  not  be  guarded  against,  they  resemble  treach- 
ery; and  all  that  resembles  treachery  should  be  scrupulously  elimi- 
nated.    Let  us  be  chivalrous  even  in  the  manner  of  making  war ! " 

Colonel  Gilinsky,  of  Russia,  said  that  "in  the  opinion  of 
the  Russian  government  the  various  means  of  injuring 
the  enemy  at  present  in  use  are  sufficient  " ;  and  General 
Mounier,  of  France,  added  that  "projectiles  launched 
from  balloons  now  might  make  victims  of  non-com- 
batants." 

Under  the  influence  of  this  humanitarian  argument, 
the  subcommission  voted  almost  unanimously  for  the 
permanent  prohibition  of  balloons  for  military  purposes. 
But  one  week  later,  Captain  Crozier,  of  the  United  States, 
moved  that  the  prohibition  be  limited  to  five  years,  and 
based  his  motion  on  the  following  argument,  which  he 
called  a  humanitarian  argument,  while  questioning  the 
logic,  from  a  humanitarian  standpoint,  of  a  permanent 
prohibition. 

"It  seems  to  me  difficult,"  said  he,  "to  justify  by  a  humanitarian 
motive  the  prohibition  of  the  use  of  balloons  for  the  hurling  of  pro- 
jectiles or  other  explosive  materials.  We  are  without  experience  in 
the  use  of  arms  whose  employment  we  propose  to  prohibit  forever. 
Granting  that  practical  means  of  using  balloons  can  be  invented, 


78  THE   TWO   HAGUE   CONFERENCES 

who  can  say  that  such  an  invention  will  not  be  of  a  kind  to  make  its 
use  possible  at  a  critical  point  on  the  field  of  battle,  at  a  critical  mo- 
ment of  the  conflict,  under  conditions  so  defined  and  concentrated 
that  it  would  decide  the  victory,  and  thus  partake  of  the  quality  pos- 
sessed by  all  perfected  arms  of  localizing  at  important  points  the  de- 
struction of  life  and  property  and  of  sparing  the  sufferings  of  all  who 
are  not  at  the  precise  spot  where  the  result  is  decided.  Such  use  tends 
to  diminish  the  evils  of  war  and  to  support  the  humanitarian  con- 
siderations which  we  have  in  view.  I  do  not  know  of  machines  thus 
efficient  and  thus  humanitarian,  in  the  incomplete  stage  of  develop- 
ment in  which  aerostation  now  is;  but  is  it  desirable  to  shut  the 
door  to  their  possible  introduction  among  the  permitted  arms?  In 
doing  so,  would  we  not  be  acting  entirely  in  the  dark,  and  would  we 
not  run  the  risk  of  error  inherent  in  such  a  manner  of  procedure? 
The  balloon,  as  we  know  it  now,  is  not  dirigible;  it  can  carry  but 
little;  it  is  capable  of  hurling,  only  on  points  inexactly  determined 
and  over  which  it  may  pass  by  chance,  indecisive  quantities  of  ex- 
plosives, which  would  fall,  like  useless  hailstones,  on  both  combat- 
ants and  non-combatants  alike.  Under  such  conditions  it  is  entirely 
suitable  to  forbid  its  use,  but  the  prohibition  should  be  temporary 
and  not  permanent.  At  a  later  stage  of  its  development,  if  it  be  seen 
that  its  less  desirable  qualities  still  predominate,  there  will  still  be 
time  to  extend  the  prohibition ;  at  present  let  us  confine  our  action 
within  the  limits  of  our  knowledge." 

Captain  Crozier  had  at  first  voted  for  the  permanent 
prohibition  in  the  subcommission,  and  was  thus  enabled 
to  move  its  reconsideration ;  but  the  president  of  the  sub- 
commission  ruled  that  the  question  should  now  be  sent 
to  the  commission  as  a  whole.  In  the  commission,  Cap- 
tain Crozier  repeated  his  motion  and  argument,  adding 
that  existing  balloons  might  injure  inoffensive  populations 
as  well  as  combatants,  and  destroy  a  church  as  well  as 
a  battery;  but  that  perfected  balloons  might  diminish 
the  length  of  a  war,  and  consequently  its  evils,  as  well  as 
the  expenses  caused  by  it.     The  representatives  of  France 


WARFARE   IN   THE   AIR  79 

and  Great  Britain  supported  this  argument,  and  after 
Colonel  Gilinsky,  of  Russia,  had  failed  to  carry  a  prohi- 
bition of  ten  years,  the  commission  unanimously  adopted 
Captain  Crozier's  motion  for  a  prohibition  of  five  years 
duration.  This  prohibition  was  adopted  unanimously 
by  the  conference  at  its  session  on  July  21,  and  became 
one  of  the  three  prohibitive  declarations  appended  to  the 
Final  Act. 

b.  THE   CONFERENCE    OF  1907 

The  five  years  prohibition  of  the  use  of  balloons,  im- 
posed by  the  first  conference,  expired  July  29,  1904. 
Before  and  after  that  date,  there  were  various  evidences 
that  the  development  of  the  use  of  balloons  had  made 
noteworthy  progress.  While  the  second  conference  was 
in  session,  there  came  reports  to  The  Hague  that  in  Ger- 
many a  dirigible  balloon,  with  a  speed  of  thirty  milej 
an  hour,  had  made  a  successful  ascent ;  that  in  France  the 
air  ship  "La  Patrie,"  made  in  the  shape  of  a  cigar,  dirigi- 
ble at  will,  and  having  a  speed  of  thirty-one  leagues  an 
hour  with  the  wind  and  eighteen  leagues  against  the  wind, 
had  maneuvered  successfully  at  the  military  review  of 
Longchamps;  that  the  French  prime  minister  and  min- 
ister of  war  had  spent  two  hours  in  "La  Patrie,"  sailing, 
or  flying,  at  will  around  Paris,  and  had  determined  to 
organize  a  corps  of  military,  aerostats  to  be  associated 
with  the  forts  on  the  German  frontier.  And  it  was  freely 
predicted  that  within  four  or  five  years  the  air  would  be 
as  full  of  air  ships  as  the  streets  are  now  of  automobiles. 

In  the  midst  of  such  reports  and  predictions  (August  7), 
the  first  subcommission  of  the  II  Commission  took  up 
the  discussion  of   the   proposition  made  by  the  Belgian 


80  THE  TWO   HAGUE   CONFERENCES 

delegation  to  renew  the  prohibition  of  1899  for  another 
period  of  five  years.  Lord  Reay,  of  Great  Britain,  sup- 
porting this  proposition,  said  that  two  elements,  the  earth 
and  the  sea,  are  quite  sufficient  for  warlike  operations; 
the  air  should  be  left  free.  ...  "  What  purpose  will 
be  served,"  he  asked,  "by  the  protective  measures  already 
adopted  [for  war  on  land],  if  we  open  to  the  scourge  of 
war  a  new  field  more  terrible  perhaps  than  all  the  others?" 

The  Russian  and  Italian  representatives  proposed  that 
a  permanent  prohibition  be  placed  upon  the  bombard- 
ment, by  air  ships,  of  unfortified  towns  and  cities;  but 
this  proposition  was  decided  to  have  been  already  in- 
cluded within  the  laws  and  customs  adopted  for  war  on 
land,  and  it  was  accordingly  withdrawn.  The  French 
delegation  argued  that  the  said  laws  and  customs  made 
unnecessary  any  regulation  concerning  warfare  in  the  air. 
But  the  Belgian  proposal  to  renew  the  prohibition  of  1899 
for  five  years  was  supported  by  the  representatives  of 
Austria,  Turkey,  Greece,  Portugal,  and  China,  and  it 
was  adopted  in  the  subcommission  by  a  vote  of  twenty- 
nine  to  six,  and  in  the  commission  without  being  sub- 
mitted to  a  vote. 

In  the  plenary  session  of  the  conference,  on  the  17th 
of  August,  Great  Britain's  delegation  offered  the  amend- 
ment, to  the  Belgian  proposition,  that  the  prohibition  be 
extended  "until  the  end  of  the  third  Peace  Conference." 
This  amendment  was  accepted  by  a  vote  of  twenty-eight  to 
eight  (with  eight  abstentions) ;  and  then  the  prohibition 
was  adopted  by  a  vote  of  twenty-nine  to  eight  (with 
seven  abstentions).1 

1  The  negative  vote  was  cast  by  Germany,  Argentina,  Spain,  France, 
Montenegro,  Persia,  Roumania,  and  Russia.  The  seven  abstentions  were: 
Chili,  Colombia,  Japan,  Mexico,  Peru,  Sweden,  and  Venezuela. 


WARFARE   IN   THE   AIR  8 1 

The  Japanese  delegation  explained  that  its  abstention 
from  the  vote  was  due  to  the  lack  of  unanimity  on  the 
question  among  the  great  military  powers,  and  said  that 
it  did  not  see  much  use  in  binding  itself  as  regards  some 
powers,  while  as  regards  the  others  it  would  be  necessary 
to  continue  to  study  and  perfect  the  means  of  warfare  in 
the  air.  In  accordance  with  this  interpretation  of  the 
conference's  vote  the  air  ship  will  have  at  least  seven  years 
to  show  what  it  can  do.  If  it  should  prove  itself  thoroughly 
efficient,  it  seems  probable  that  it  will  be  admitted  as 
an  engine  of  warfare,  as  well  as  of  communication  and 
espionage.  Should  this  prove  to  be  the  case,  dire  pre- 
dictions are  made  as  to  its  political,  financial,  and  military 
results.  One  eminent  prophet  has  said  that  before  it 
boundaries  and  nationalities  would  be  obliterated,  forts 
and  custom  houses  would  become  useless.  From  the 
financial  point  of  view,  it  is  urged  that  when  the  trans- 
portation of  dutiable  goods  is  made  by  balloons,  govern- 
ments can  no  longer  depend  upon  customs  dues  in  time 
of  war,  and  that  then  their  war  budgets  will  be  more 
directly  felt  and  more  bitterly  resented  than  at  present; 
that,  although  the  cost  of  constructing  a  balloon  is  rela- 
tively small  —  about  $50,000,  —  the  manufacture  of  shells 
for  combating  them  will  have  to  be  developed,  and  they 
themselves  will  become  more  and  more  expensive  through 
the  introduction  of  new  means  of  ascending  higher  and  flying 
faster  in  order  to  avoid  the  shells.  Thus,  financially,  the 
result  of  air  war  ships  would  be  both  to  increase  enor- 
mously the  cost  of  armaments  and  to  diminish  the  sources 
of  revenue  for  supplying  it.  From  the  military  point  of 
view,  it  is  urged  by  a  German  lieutenant  colonel  that  air 
war  ships  would  make  war   "more   bloody  and   infernal 


82  THE   TWO   HAGUE   CONFERENCES 

than  it  is  at  present";  that  "frightful  ravages  would  be 
wrought  where  their  projectiles  strike";  that  "soldiers 
would  dream  of  being  exposed  constantly,  even  during 
the  night,  to  a  death-dealing  rain,  and  great  panics  would 
ensue;  and  that  hence  it  is  above  all  the  moral  effect  of 
such  arms  which  should  form  the  chief  objection  to  their 
use."  One  eminent  Austrian  statesman  has  gone  still 
farther  in  this  military  critique,  and  has  predicted  that 
"all  the  armaments  in  the  world  would  be  rendered 
obsolete  by  the  advent  of  war  ships  in  the  air." 

Whether  or  not  these  and  similar  arguments  will  be 
used  in  the  next  conference  in  favor  of  renewing,  or  mak- 
ing permanent,  the  prohibition  of  balloons  as  war  ships, 
or  of  recognizing  them  as  regular  engines  of  warfare, 
will  depend,  of  course,  upon  the  progress  made  in  aero- 
statics during  the  next  seven  years;  but  even  now  it  may 
be  assumed  that  the  subject  will  become  of  increasing 
importance  in  each  recurring  conference. 

The  United  States  delegation  took  no  part,  in  the  Con- 
ference of  1907,  in  the  discussion  of  the  question,  but 
voted  with  the  majority,  in  both  subcommission  and  con- 
ference, in  favor  of  the  temporary  prohibition.  Professor 
Renault,  of  France,  repeated  the  arguments  used  in  1899 
by  Captain  Crozier,  of  the  United  States,  in  favor  of  a 
temporary  as  against  a  permanent  prohibition.  The 
French  delegation,  however,  opposed  any  other  restric- 
tion on  warfare  in  the  air  than  had  been  adopted  for  war- 
fare on  the  land.  And  this  opposition  probably  caused 
a  negative  vote  to  be  cast  in  the  conference  by  the  German 
delegation,  which  had  voted  in  the  subcommission  in 
favor  of  the  temporary  prohibition  on  condition  that  the 
affirmative  vote  should  be  unanimous. 


XI.   WARFARE   ON   THE   SEA 
A.   NEW   ARMS   AND   METHODS 

a.   The  Conference  of  1899 

The  second  topic  mentioned  in  the  Russian  programme 
of  January  11,  1899,  was  "the  prohibition  of  the  use  in 
armies  and  fleets  of  any  new  kinds  of  firearms  whatever, 
and  of  new  explosives,  or  any  powders  more  powerful 
than  those  now  in  use,  either  for  muskets  or  cannon." 
When  this  topic  came  up  for  discussion  in  the  naval  sub- 
commission  of  the  I  Commission,  the  first  difficulty  which 
arose  was  as  to  the  precise  meaning  of  the  term  "new 
kinds  of  firearms."  Captain  Scheine,  of  Russia,  an- 
swered this  question  by  saying  that  "the  term  should  be 
understood  in  the  sense  of  an  entirely  new  type,  and  should 
not  include  transformations  and  improvements."  But 
to  this  it  was  objected  by  Admiral  Pephau,  of  France, 
that  "a  new  type" — of  cannon,  for  example — was 
merely  an  old  type  gradually  modified  and  improved. 
Again,  it  was  asked,  by  Captain  Sakomoto,  of  Japan,  if 
"new  type"  included  one  already  invented,  but  not  yet 
adopted.  And,  finally,  the  term  "prohibition"  was  ob- 
jected to  as  being  inadmissible;  for,  if  it  was  to  be  ap- 
plied to  the  invention  and  construction  of  such  engines  of 
warfare,  it  could  be  enforced  —  if  at  all  —  only  by  a  law 
of  each  nation;  and  if  it  was  to  be  applied  to  the  intro- 
duction of  such  arms  from  abroad,  it  would  be  an  in- 
fringement on  national  sovereignty. 

83 


84  THE   TWO   HAGUE   CONFERENCES 

Captain  Scheme  replied  to  the  last  objection  that  the 
prohibition  was  to  be  only  a  temporary  one,  for  say  three 
or  four  years;  and  that,  since  it  was  not  very  probable 
that  arms  in  general  would  be  greatly  modified  during 
that  time,  the  governments  could  use  the  opportunity 
for  looking  further  into  the  question  and  deciding  upon 
some  definite  line  of  action. 

The  Russian  proposal  was  urged  on  the  twofold  ground 
of  economy,  —  the  reduction  of  warlike  expenditures, 
and  humanity,  —  the  alleviation  of  the  horrors  of  warfare. 

To  these  arguments  it  was  replied,  by  Admiral  Fisher, 
of  Great  Britain,  that  each  country  desires  to  equip  itself 
with  the  best  arms  that  it  can  procure;  that  such  arms 
tend  to  shorten  and  to  prevent  wars ;  and  that  a  restriction 
on  the  invention  and  construction  of  new  types  of  arms 
would  place  civilized  peoples  in  a  disadvantageous  position 
in  time  of  war  with  nations  less  civilized  or  with  savage 
tribes.  In  the  military  subcommission,  the  argument 
was  also  made  on  the  economic  phase  of  the  question  by 
General  Poortugael,  of  the  Netherlands,  that  a  new  in- 
vention might  occasion,  not  greater  expense,  but  econ- 
omies of  various  kinds;  he  added,  however,  that  in  case 
an  international  agreement  could  be  reached,  the  Nether- 
lands would  willingly  join  in  it. 

The  United  States  delegation  says  of  this  general  sub- 
ject, in  its  final  report  to  the  government : 

"The  American  delegation  approached  the  subject  of  the  limita- 
tion of  invention  with  much  doubt.  They  had  been  justly  reminded 
in  their  instructions  of  the  fact  that  by  the  progress  of  invention  as 
applied  to  the  agencies  of  war,  the  frequency  and  indeed  the  ex- 
hausting character  of  war  had  been  as  a  rule  diminished  rather  than 
increased.     As  to  details  regarding  missiles  and  methods,  technical 


WARFARE    ON   THE   SEA  85 

and  other  difficulties  arose  which  obliged  us  eventually  to  put  our- 
selves on  record  in  opposition  to  the  large  majority  of  our  colleagues 
from  other  nations  on  sundry  points.  While  agreeing  with  them  most 
earnestly  as  to  the  end  to  be  attained,  the  difference  in  regard  to  some 
details  was  irreconcilable.  We  feared  falling  into  worse  evils  than 
those  from  which  we  sought  to  escape." 

Captain  Mahan,  the  United  States  representative  on 
the  naval  subcommission,  was  a  good  exponent  of  this 
optimism  as  to  the  possibilities  of  "  Yankee  inventiveness  " 
and  of  "  Yankee  caution,"  and  shared  in  the  criticism  of 
the  Russian  proposal  as  to  "new  arms." 

1.    Marine  Cannon 

The  subcommission,  being  unwilling  to  express  its 
opinion  on  an  indefinite  question,  however  important  it 
might  be,  requested  Captain  Scheine  to  define  precisely 
what  "new  arms"  were  implied  by  the  Russian  proposal. 
This  he  did  by  taking  up,  first,  the  question  of  marine 
cannon.  After  describing  the  various  types  of  cannon, 
he  proposed  that  the  powers  should  agree  for  a  period 
of  three  or  five  years  (each  power  to  fix  the  beginning  of 
the  period)  to  limit  the  caliber  of  ordinary  guns  to  seven- 
teen inches  (43  cm.),  and  of  rapid-firing  guns  to  eight 
inches  (20  cm.);  their  length  to  forty-five  calibers;  and 
the  initial  velocity  to  three  thousand  feet  a  second  (914  m.). 
Captain  Mahan  having  made  the  remark  that  if  calibers 
are  to  be  limited,  armor  also  should  be  restricted,  Captain 
Scheine  proposed  that  the  maximum  thickness  of  armor 
should  be  fourteen  inches  (355  mm.)  according  to  the 
latest  Krupp  pattern.  After  a  discussion  of  these  prop- 
ositions, and  a  restatement  by  various  delegates  of  much 
the  same  objections  which  they  had  made  to  the  restriction 


86  THE  TWO   HAGUE   CONFERENCES 

of  "new  arms"  in  general,  it  was  agreed  that  the  delegates 
should  inform  their  governments  of  the  Russian  proposals, 
and  await  their  instructions.  Captain  Mahan  said  that, 
although  he  was  willing  to  consult  his  government,  he 
did  not  believe  that  the  United  States  would  be  inclined 
to  restrain  inventions,  especially  those  related  to  the  per- 
fecting of  armor  plate. 

Admiral  Pephau,  of  France,  thinking  that  an  agree- 
ment might  be  secured  upon  a  general  statement,  if  not 
on  a  specific  restriction,  proposed  that  the  governments 
should  agree  not  to  introduce  within  a  certain  time  "a 
radical  transformation  in  existing  types,  such  as  that  from 
a  muzzle-loading  to  a  breech-loading  cannon  "  ;  and  that, 
"  in  any  case,  the  calibers  at  present  in  use  shall  not  be  in- 
creased." Of  the  fourteen  votes  cast  on  this  proposition, 
however,  seven  were  for,  and  seven  against ;  the  affirma- 
tive were  chiefly  those  of  the  small  powers,  and  the  nega- 
tive chiefly  those  of  the  large  powers,  including  the 
United  States.  This  compromise  was,  accordingly,  re- 
jected; and,  after  some  of  the  governments  had  been 
heard  from,  a  vote  was  taken  on  the  specific  pro- 
posals of  Russia,  with  the  result  that  of  ten  votes  cast, 
seven  were  for  and  three  agansit  them.1  When  this 
result  was  reported  to  the  commission,  that  body  voted 
unanimously  to  leave  the  question  open  and  to  recommend 
it  to  the  serious  study  of  the  governments ;  and  the  con- 
ference adopted  this  recommendation  unanimously,  with 
the  exception  of  a  few  abstentions. 

1  Those  voting  aye,  on  condition  of  unanimity,  were:  Russia,  Austria- 
Hungary,  Sweden  and  Norway,  Japan,  the  Netherlands,  Roumania  and  Siam; 
those  voting  no  were :    United  States,   Germany,  Italy. 


WARFARE   ON  THE   SEA  87 

2.    Explosives  and  Asphyxiating  Gases 

The  Russian  programme  included,  next,  the  prohibi- 
tion of  "new  explosives,  or  any  powders  more  powerful 
than  those  now  in  use."  When  this  topic  was  taken  up 
in  the  naval  subcommission,  M.  Rolin,  delegate  from 
Siam,  objected  to  the  proposal  because  "the  employment 
of  explosives,  particularly  for  the  small  powers,  constitutes 
a  special  means  of  defense."  Admirals  Fisher,  of  England, 
and  Pephau,  of  France,  also  objected  to  the  prohibition 
for  the  same  reasons  as  were  urged  in  the  case  of  "new 
arms";  and  after  his  defeat  on  this  latter  question,  Cap- 
tain Scheine,  of  Russia,  did  not  press  his  plan  regarding 
new  explosives,  but  cleverly  substituted  for  it  a  proposal 
to  prohibit  the  use  of  "projectiles  charged  with  explo- 
sives which  diffuse  asphyxiating  or  deleterious  gases." 
When  Count  Soltyk,  of  Austria-Hungary,  objected  to  this 
phraseology  because  "all  explosives  contain  gas  more  or 
less  injurious,"  Captain  Scheine  defined  the  prohibition  to 
"include  only  those  projectiles  whose  object  is  to  diffuse 
asphyxiating  gases,  and  not  to  those  whose  explosion  pro- 
duces incidentally  such  gases." 

The  representatives  of  Russia,  Denmark,  France, 
Austria-Hungary,  Great  Britain,  and  Portugal  supported 
this  proposal,  making  the  following  arguments:  the  task 
of  the  conference  being  to  restrict  the  means  of  destruc- 
tion, it  is  logical  to  prohibit  new  means,  above  all  when 
they  have  (as  have  such  projectiles)  a  barbarous  char- 
acter and  partake  of  treachery  and  cruelty  similar  to  the 
poisoning  of  drinking  water;  directed  against  a  besieged 
city,  they  would  destroy  more  non-combatants  than 
ordinary  projectiles;    death  from  asphyxiation  is   more 


88  THE  TWO   HAGUE   CONFERENCES 

cruel  than  death  from  bullets ;  means  should  be  sought  for 
putting  enemies  out  of  the  battle,  but  not  out  of  this  world. 
As  a  result  of  these  arguments,  the  prohibition  was 
voted  in  the  subcommission,  unanimously,  with  the  ex- 
ception of  the  vote  of  the  delegate  from  the  United  States, 
which  was  cast  against  it.  Captain  Mahan  carried  his 
struggle  to  permit  the  use  of  such  gases  through  the  sub- 
commission,  commission,  and  conference.  In  defense  of 
his  action,  he  made  the  following  report  to  the  United 
States  government : 

"As  a  certain  disposition  has  been  observed  to  attach  odium  to  the 
view  adopted  by  this  Commission  [i.e.  the  United  States  delegation] 
in  this  matter,  it  seems  proper  to  state,  fully  and  explicitly,  for  the 
information  of  the  Government,  that  on  the  first  occasion  of  the 
subject  arising  in  Subcommittee,  and  subsequently  at  various  times 
in  full  Committee,  and  before  the  Conference,  the  United  States  naval 
delegate  did  not  cast  his  vote  silently,  but  gave  the  reasons,  which  at 
his  demand  were  inserted  in  the  reports  of  the  day's  proceedings. 
These  reasons  were,  briefly:  i.  That  no  shell  emitting  such  gases  is 
as  yet  in  practical  use,  or  has  undergone  adequate  experiment;  con- 
sequently, a  vote  taken  now  would  be  in  ignorance  of  the  facts  as  to 
whether  the  results  would  be  of  a  decisive  character,  or  whether  injury 
in  excess  of  that  necessary  to  attain  the  end  of  warfare,  the  immediate 
disabling  of  the  enemy,  would  be  inflicted.  2.  That  the  reproach  of 
cruelty  and  perfidy,  addressed  against  these  supposed  shells,  was 
equally  uttered  formerly  against  firearms  and  torpedoes,  both  of 
which  are  now  employed  without  scruple.  Until  we  knew  the  effects 
of  such  asphyxiating  shells,  there  was  no  saying  whether  they  would 
be  more  or  less  merciful  than  missiles  now  permitted.  3.  That  it  was 
illogical,  and  not  demonstrably  humane,  to  be  tender  about  asphyxiat- 
ing men  with  gas,  when  all  were  prepared  to  admit  that  it  was  allow- 
able to  blow  the  bottom  out  of  an  iron-clad  at  midnight,  throwing  four 
or  five  hundred  into  the  sea,  to  be  choked  by  water,  with  scarcely  the 
remotest  chance  of  escape.  If,  and  when,  a  shell  emitting  asphyx- 
iating gases  alone  has  been  successfully  produced,  then,  and  not  be- 
fore, men  will  be  able  to  vote  intelligently  on  the  subject." 


WARFARE    ON   THE    SEA  89 

In  the  meeting  of  the  commission  to  which  the  result  of 
this  discussion  was  reported,  the  president,  M.  van  Karne- 
beek,  of  the  Netherlands,  made  an  urgent  appeal,  to  the 
United  States  delegation  to  make  the  vote  against  asphyxi- 
ating gases  unanimous,  and  said  that  six  of  the  countries 
voting  aye  had  done  so  only  in  case  of  unanimity.  But 
Captain  Mahan  replied  that  it  was  "impossible  to  change 
his  first  vote,  because  it  was  based  on  a  question  of 
principle." 

In  the  session  of  the  conference,  when  the  question  was 
finally  disposed  of,  the  United  States  voted  no,  and  Great 
Britain  cast  the  same  vote,  unanimity  not  having  been 
secured ;  but  all  the  other  countries  voted  for  the  prohibi- 
tion, and  the  conference  adopted  the  following  declaration : 

"The  Undersigned,  Plenipotentiaries  of  the  Powers  represented 
at  the  International  Peace  Conference  at  The  Hague,  duly  authorized 
to  that  effect  by  their  Governments,  inspired  by  the  sentiments  which 
found  expression  in  the  Declaration  of  St.  Petersburg  of  the  29th  No- 
vember (nth  December),  1868,  declare  as  follows:  The  Contracting 
Powers  agree  to  abstain  from  the  use  of  projectiles  the  object  of  which 
is  the  diffusion  of  asphyxiating  or  deleterious  gases." 

This  declaration  was  signed  by  the  delegations  of  all  the 
twenty-six  countries  represented,  with  the  exception  of 
those  of  the  United  States  and  Great  Britain. 

In  defense  of  Captain  Mahan's  stand  on  this  question, 
the  following  paragraph  from  the  United  States  secretary 
of  state's  instructions  to  the  delegation  may  be  noted: 
"It  is  doubtful  if  wars  will  be  diminished  by  rendering 
them  less  destructive,  for  it  is  the  plain  lesson  of  history 
that  the  periods  of  peace  have  been  longer  protracted  as 
the  cost  and  destructiveness  of  war  have  increased.  The 
expediency  of  restraining  the  inventive  genius  of  our  peo- 


.  S  rv^  ; 


90  THE   TWO   HAGUE   CONFERENCES 

pic  in  the  direction  of  devising  means  of  defense  is  by  no 
means  clear,  and,  considering  the  temptations  to  which 
men  and  nations  may  be  exposed  in  a  time  of  conflict,  it 
is  doubtful  if  an  international  agreement  of  this  nature 
would  prove  effective." 

On  the  other  hand,  it  should  be  noted  that  our  delega- 
tion was  not  united  in  its  opposition  to  the  prohibition  of 
asphyxiating  bombs.  Ambassador  White,  the  leader  of 
the  delegation,  recorded  in  his  diary  at  the  time  of  the 
discussion  of  the  question:  "  To  this  [Captain  Mahan's 
argument]  it  was  answered  —  and,  as  it  seemed  to  me, 
with  force  —  that  asphyxiating  bombs  might  be  used 
against  towns  for  the  destruction  of  vast  numbers  of  non- 
combatants,  including  women  and  children,  while  torpe- 
does at  sea  are  used  only  against  the  military  and  naval 
forces  of  the  enemy.  The  original  proposal  was  carried 
by  a  unanimous  vote,  save  ours.  I  am  not  satisfied  with 
our  attitude  on  this  question ;  but  what  can  a  layman  do 
when  he  has  against  him  the  foremost  contemporary 
military  and  naval  experts  ?  My  hope  is  that  the  United 
States  will  yet  stand  with  the  majority  on  the  record."  x 

It  should  be  noted,  also,  that  in  the  Conference  of 
1907,  Great  Britain's  first  delegate,  Sir  Edward  Fry, 
announced  that  his  government,  desirous  of  promoting 
the  utmost  possible  unanimity  among  the  nations,  had 
instructed  him  to  accept  the  declaration  of  1899  against 
the  use  of  asphyxiating  gases.  Since  the  governments  of 
South  and  Central  America,  for  the  first  time  represented 
in  1907,  had  already  accepted  the  acts  of  1899,  Great 
Britain's  adhesion  to  the  above  declaration  left  the  United 
States  government  alone  in  opposition  to  it. 

1  Andrew  D.  White,  "  Autobiography,"  II,  319-320. 


WARFARE    ON   THE    SEA 


91 


3.    Torpedo  Boats  and  Rams 

The  Russian  proposal  on  this  topic  was:  "A  prohibi- 
tion of  the  use,  in  naval  warfare,  of  submarine  torpedo 
boats  or  plungers,  or  other  similar  engines  of  destruction; 
an  agreement  not  to  construct,  in  the  future,  vessels  with 
rams." 

The  president  of  the  naval  subcommission  opened  the 
discussion  of  the  question  as  to  torpedo  boats  with  the 
remark  that  "if  one  nation  should  adopt  these  terrible 
engines  of  war,  all  others  should  be  left  free  to  make  use 
of  them  also."  The  delegates  of  Great  Britain,  Germany, 
Russia,  Japan,  Italy,  and  Denmark  said  that  their  coun- 
tries would  vote  for  the  prohibition,  but  only  in  case  una- 
nimity could  be  secured.  Captain  Mahan,  of  the  United 
States,  said  that  he  wished  to  leave  his  government  in 
entire  liberty  to  make  use  of  such  boats,  but  would  await 
the  decisions  of  the  other  delegates.  Austria-Hungary's 
delegate  believed  that  they  should  be  permitted  for  the 
defense  of  seaports  and  roadsteads;  the  delegate  of 
France  believed  that  the  submarine  torpedo  has  an  emi- 
nently defensive  object  and  should  be  permitted ;  and  the 
delegates  of  the  Netherlands,  Siam,  and  Sweden  and  Nor- 
way supported  this  conclusion  for  the  reason  that  the  sub- 
marine torpedo  is  the  rightful  weapon  of  the  small  and 
feeble.  This  difference  of  opinion  being  so  great,  neither 
the  subcommission,  commission,  nor  conference  attempted  to 
express  any  formal  resolution  on  the  use  of  torpedo  boats.1 

The  construction  of  war  ships  with  rams  was  another 
question  which  failed  to  receive  a  definite  answer.     It  was 

1  In  the  commission,  a  vote  was  taken  on  the  Russian  proposal,  ten  states 
voting  for  it,  and  nine  against  it;    the  United  States  voted  against  it. 


g 2  THE   TWO   HAGUE   CONFERENCES 

argued  that  the  prohibition  could  not  extend  to  ships 
already  made,  nor  to  ships  contracted  for  and  under 
construction ;  nor  could  it  be  properly  held  to  apply  to  a 
war  ship  which  is  not  provided  with  a  ram?  but  is  strength- 
ened at  the  bow  in  such  a  manner  as  to  give  and  sustain 
a  shock.  Captain  Hjulhammar,  of  Sweden  and  Norway, 
argued  that  by  suppressing  the  ram  and  not  the  torpedo 
boat  but  little  would  be  done  in  the  cause  of  humanity; 
and  that  the  ram  is  useful  against  transports  in  case  of  dis- 
embarkation, —  a  matter  of  importance  to  states  having 
a  long  extent  of  coast.  And  M.  de  Bille,  of  Denmark, 
argued  that  the  ram  constitutes  a  useful  means  of  defense, 
and  offers  to  small  ships  their  only  chance  of  defeating 
large  ones. 

Captain  Scheme,  of  Russia,  having  failed  to  secure  any 
agreement  as  to  the  construction  of  ships  with  rams, 
proposed  that  in  time  of  peace  the  rams  on  war  ships 
should  be  masked,  so  as  to  reduce  the  danger  from  them 
to  other  ships  in  case  of  collision.  But  on  this  proposal 
the  argument  was  made  that  means  of  masking  rams  are 
as  yet  but  too  little  developed ;  and  although  the  subcom- 
mission  reported  the  question  to  the  commission,  which 
alone  was  competent  to  deal  with  it,  no  action  was  taken 
upon  it. 

Captain  Mahan  was  one  of  those  who  argued  against  the 
subcommission's  competency  to  deal  with  the  masking  of 
rams ;  but  in  the  commission  the  United  States  was  one  of 
the  seven  states  that  voted  for  the  prohibition  of  the  con- 
struction of  ships  with  rams,  on  condition  that  the  vote 
should  be  unanimous.1 

1  These  states  were:  The  United  States,  Great  Britain,  Italy,  Japan, 
Persia,  the  Netherlands,   and  Roumania ;  four  others  voted  for  the  prohibition 


WARFARE    ON   THE   SEA 


b.   The  Conference  of  1907 


93 


The  Russian  programme  for  the  second  conference 
contained  no  reference  to  "new  kinds  of  firearms."  This 
is  not  surprising,  considering  the  decided  rejection  of 
Russia's  proposals  concerning  them  in  1899 ;  and  consider- 
ing also  the  fact  that  it  omitted  from  its  programme  for 
1907  its  entire  armament  policy,  of  which  new  arms, 
marine  cannon,  etc.,  formed  a  part.  But,  with  the  state- 
ment that  "  it  is  desirable  at  present  to  examine  only  those 
questions  which  are  especially  pressing,  those,  namely, 
which  have  arisen  from  the  experience  of  the  years  just 
past,"  the  programme  specified  the  three  questions  of  sub- 
marine mines,  naval  bombardment,  and  the  transfor- 
mation of  merchant  ships  into  cruisers,  as  requiring  an 
international  agreement. 

1.    Submarine  Mines 

The  placing  of  torpedoes,  or  the  use  of  submarine  mines, 
was  made  prominent  by  the  Russo-Japanese  War;  and 
the  question  of  regulating  it  was  considered  by  several  of 
the  great  naval  and  maritime  powers  to  be  an  urgent  one. 

When  it  came  up  for  discussion  in  the  first  subcom- 
mission  of  the  III  Commission,  the  subcommission's 
president  declared  that  its  solution  presented  greater 
technical  difficulties  than  any  other  question  before  the 
conference;  but  that  if  such  solution  could  be  reached,  it 
would  prove  most  valuable  in  the  promotion  of  humanity 
and  peace. 

without  reserve:  France,  Greece,  Siam,  and  Bulgaria;  and  seven  states  voted 
against  it:  Germany,  Austria-Hungary,  Denmark,  Spain,  Portugal,  Sweden 
and  Norway,  and  Turkey. 


94  THE  TWO   HAGUE   CONFERENCES 

The  basis  of  discussion  was  Great  Britain's  proposi- 
tions that  the  use  of  unanchored,  or  floating,  submarine 
contact  mines  should  be  forbidden;  that  the  use  of 
such  mines  as  do  not  become  harmless  when  breaking 
loose  from  their  anchorage  should  be  prohibited;  that 
the  use  of  mines  to  establish  or  maintain  a  commer- 
cial blockade  should  be  prohibited;  that  belligerents 
should  be  permitted  to  use  mines  only  in  their  own  or 
their  enemies'  territorial  waters,  or  at  a  distance  of  ten 
miles  in  front  of  naval  forts. 

Captain  Ottley,  of  the  British  navy,  supported  these 
propositions  in  a  speech  in  which  he  showed  the  great 
danger  of  the  indiscriminate  sowing  of  the  high  seas  with 
floating  mines,  to  human  life  and  to  the  commerce  of  neu- 
tral nations.  The  Chinese  delegates  supported  the  British 
propositions  on  the  ground  of  a  "large  humanity,"  and 
emphasized  their  support  by  citing  some  consequences 
to  their  country  of  the  Russo-Japanese  War.  They 
stated  that  their  government  was  still  obliged  (two  years 
after  the  close  of  that  war)  to  furnish  its  coasting  vessels 
with  special  instruments  to  remove  and  destroy  the  float- 
ing mines  which  encumber  not  only  the  high  seas  but 
also  its  own  territorial  waters;  that,  in  spite  of  every 
precaution,  a  very  considerable  number  of  coasting  ships, 
fishing  boats,  junks,  and  sampans,  have  foundered  as  a 
result  of  striking  these  mines;  and  that  from  five  to  six 
hundred  Chinese  citizens,  peacefully  pursuing  their  occu- 
pations, have  suffered  a  cruel  death  from  these  dangerous 
engines  of  warfare. 

Several  other  delegations  admitted  the  truth  of  Cap- 
tain Ottley's  arguments,  but  proposed  various  amend- 
ments   to    the    British    propositions.     The    Italian    and 


WARFARE    ON   THE   SEA 


95 


Japanese  delegates  proposed  that,  instead  of  prohibiting 
floating  mines  altogether,  as  the  first  British  proposition 
required,  a  belligerent  should  have  the  right  of  using  float- 
ing mines  which  should  become  harmless  "within  one 
hour  after  they  are  launched,"  or  "after  a  duration  of 
submersion  restricted  in  such  a  way  as  to  present  no 
danger  to  neutral  vessels  outside  the  immediate  sphere  of 
hostilities."  The  delegations  of  the  Netherlands  and 
Brazil  demanded  that  the  right  of  using  anchored  mines 
be  accorded  to  neutrals  for  the  purpose  of  defending  their 
neutrality,  as  well  as  to  belligerents.  And  Admiral  Siegel, 
of  Germany,  insisted  that,  instead  of  restricting  belliger- 
ents in  the  use  of  mines  to  their  own  or  each  other's  terri- 
torial waters,  they  should  be  permitted  to  use  them  also 
on  the  "theater  of  war";  that  is,  on  the  space  of  sea  on 
which  a  warlike  operation  is  being  carried  out,  or  has  just 
been  carried  out,  or  on  which  such  operation  may  result 
from  the  presence  or  the  approach  of  the  armed  forces  of 
the  two  belligerents. 

After  a  prolonged  discussion  of  the  subject  in  its  various 
phases,  it  was  referred  to  a  committee  of  twenty-four 
delegates,  representing  chiefly  the  countries  which  had 
presented  propositions  in  regard  to  it.1 

This  committee,  after  six  weeks  of  discussion,  appealed 
to  the  III  Commission  to  know  if  that  commission,  or 
even  the  conference  itself,  was  competent  to  restrict  the 
use  of  mines  by  neutral  nations.  An  animated  debate 
on  this  question  arose  in  the  commission,  which  decided 
that  it  was  competent  to  impose  such  restriction.     After 

1  The  United  States  delegation  had  presented  a  proposition,  similar  to  the 
first  two  British  propositions,  designed  to  protect  the  commerce  of  neutral 
nations;    Admiral  Sperry,  U.S.N.,  was  appointed  on  the  committee. 


96  THE  TWO   HAGUE   CONFERENCES 

three  more  weeks  of  discussion,  the  committee  presented 
a  voluminous  report  which  touched  upon  various  phases 
of  the  subject  and  stated  that,  in  spite  of  the  great  diffi- 
culties connected  with  it,  certain  principles  had  been 
unanimously  accepted  by  the  committee  and  certain  rules 
for  applying  those  principles  had  been  adopted  by  a 
majority  vote.  The  principles  unanimously  accepted 
were  few  but  important,  and  were  stated  as  follows:  a. 
fundamental  distinction  must  be  made  between  automatic 
contact  mines  which  are  anchored,  or  cabled,  and  those 
which  are  not  cabled;  the  latter  may  be  used  anywhere, 
but  they  should  be  so  constructed  as  to  become  harmless 
within  an  extremely  short  lapse  of  time ;  the  same  is  true, 
also,  of  automobile  torpedoes  which  have  missed  their 
aim.  As  to  cabled  mines,  it  is  necessary  to  restrict  their 
use  within  certain  places ;  but  since  this  restriction  can  not 
be  absolute,  and  since  it  can  not  preclude  the  possibility  of 
placing  them  in  places  where  peaceful  navigation  should 
be  able  to  count  on  free  access,  it  is  necessary  to  restrict 
cabled  mines  also  within  a  limit  of  time  during  which  they 
may  continue  dangerous.  And,  finally,  every  cabled  mine 
should  be  so  constructed  as  to  become  harmless  as  soon  as 
it  breaks  loose  from  its  cables. 

Upon  these  principles  the  majority  of  the  committee 
based  a  series  of  special  rules,  which  were  recommended 
to  the  commission.  In  the  long  debate  upon  these  rules, 
within  the  commission,  the  delegates  from  the  United 
States,  Great  Britain,  and  Japan  argued  that  they  were 
not  sufficiently  restrictive;  while  two  delegates  from 
Germany  insisted  that  they  went  too  far  in  the  direction 
of  crippling  the  warlike  efficiency  of  small  fleets.  Con- 
cessions were  made  by  both  sides  in  the  debate,  and  the 


WARFARE    ON   THE    SEA  97 

rules  finally  adopted  received  the  unanimous  vote  of 
the  thirty-eight  delegations  present  when  the  vote  was 
taken.1 

The  conference,  also,  adopted  these  rules  unanimously, 
except  that  eight  delegations  reserved  their  votes  on  parts 
of  them.  They  forbid :  first,  the  use  of  unanchored 
mines,  unless  constructed  in  such  a  manner  as  to  become 
harmless  within  one  hour  after  their  control  has  been 
lost ; 2  second,  the  use  of  anchored  mines  which  do  not 
become  harmless  as  soon  as  they  break  their  cables;  third, 
the  use  of  torpedoes  which  do  not  become  harmless  when 
they  have  missed  their  aim;  fourth,  the  placing  of  mines 
along  the  coasts  and  in  front  of  the  ports  of  the  enemy, 
with  the  sole  purpose  of  intercepting  commerce.3  They 
provide,  also,  that  every  possible  precaution  shall  be  taken 
to  protect  peaceful  navigation  from  mines,  the  belliger- 
ents agreeing,  whenever  possible,  to  cause  them  to  become 
harmless  after  a  limited  time  and,  when  they  cease  to  be 
guarded,  to  indicate  the  dangerous  regions  and  inform 
the  governments  of  them,  as  soon  as  military  exigencies 
permit.  Neutral  governments  which  place  mines  along 
their  coasts  are  subjected  to  the  same  rules  as  are  belliger- 
ents. At  the  end  of  a  war,  both  belligerents  are  required 
to  remove  the  mines  which  they  have  planted,  both  on 
their  own  and  the  enemy's  coasts,  as  well  as  elsewhere. 
All  the  contracting  powers  agree  to  transform,  as  soon  as 
possible,  their  mining  materials  into  the  perfected  types 
necessitated  by  the  above  rules;   and  the  rules  themselves 

1  There  were  six  absences:  Chili,  Dominican  Republic,  Luxemburg, 
Nicaragua,  Panama,  and  Paraguay. 

2  Dominican  Republic,  Mexico,  Montenegro,  Russia,  Siam,  and  Turkey 
reserved  their  vote  on  this  rule. 

3  Germany  and  France  reserved  their  vote  on  this  rule- 


98  THE   TWO   HAGUE   CONFERENCES 

are  to  remain  in  force  for  seven  years,  and  longer  unless 
repudiated  in  a  prescribed  manner. 

The  disappointment  of  the  British  delegation  that  the 
rules  adopted  were  not  more  radical  was  voiced  by  Sir 
Ernest  Satow,  who,  in  a  plenary  session  of  the  conference, 
made  the  following  statement : 

"Having  voted  for  the  Convention  on  Mines  which  the  conference 
has  just  adopted,  the  British  delegation  desires  to  assert  that  it  can 
not  consider  this  arrangement  as  definitively  solving  the  question, 
but  as  marking  only  one  step  in  international  legislation  on  the  sub- 
ject. It  believes  that  there  has  not  been  sufficient  regard  for  the  right 
of  neutrals  to  protection,  nor  for  the  sentiments  of  humanity  which 
can  not  be  neglected;  it  has  done  its  utmost  to  induce  the  conference 
to  adopt  this  view,  but  its  efforts  in  this  direction  have  been  futile. 

"The  high  seas,  gentlemen,  are  a  great  international  highway. 
If,  in  the  present  state  of  international  laws  and  customs,  belligerents 
are  permitted  to  settle  their  disputes  on  it,  it  is  none  the  less  incum- 
bent upon  them  to  do  nothing  which,  long  after  their  own  departure 
from  the  scene  of  conflict,  might  make  this  highway  dangerous  for 
neutrals  who  have  an  equal  right  to  its  use.  We  declare,  without 
hesitation,  that  the  right  of  neutrals  to  security  in  navigating  the  high 
seas  should  take  precedence  of  the  transient  right  of  belligerents  to 
make  use  of  them  as  the  place  of  warlike  operations. 

"But  the  convention  which  has  been  adopted  does  not  impose 
upon  the  belligerent  a  single  restriction  as  to  the  placing  of  cabled  mines 
wherever  it  may  seem  to  him  desirable,  whether  it  be  in  his  own  ter- 
ritorial waters  for  purposes  of  defense,  or  in  those  of  the  enemy  for  pur- 
poses of  attack,  or,  finally,  in  the  high  seas,  thus  necessarily  causing  great 
risks  to  neutral  navigation  in  time  of  naval  warfare  and,  indeed,  the 
probability  of  disasters.  We  have  already  insisted,  several  times,  on  the 
danger  of  such  a  condition ;  we  have  been  obliged  to  point  out  what 
might  be  the  consequences  of  the  loss  of  some  great  steamboat  be- 
longing to  a  neutral  power.  We  have  not  failed  to  advance  every 
argument  in  favor  of  restricting  the  field  of  action  of  these  mines, 
and  particularly  to  emphasize  the  advantages  which  the  whole 
civilized  world  would  derive  from  such  a  measure,  since  it  would 


WARFARE    ON   THE   SEA  99 

diminish,  to  a  certain  extent,  the  causes  of  armed  conflict.  It  has 
seemed  to  us  that  the  adoption  of  the  proposition  made  by  us  at  the 
beginning  of  the  discussion  would  have  prevented  the  dangers  which, 
in  every  future  naval  war,  will  threaten  to  disturb  peaceful  relations 
between  neutrals  and  belligerents.  But,  since  the  conference  has  not 
partaken  of  our  way  of  thinking,  it  remains  for  us  to  declare  in  the 
most  formal  manner  that  those  dangers  exist  and  that  it  is  due  to  the 
incomplete  state  of  the  present  convention  that  they  will  make  them- 
selves felt  in  the  future.  This  convention,  being  as  it  is,  in  our 
opinion,  only  a  partial  and  insufficient  solution  of  the  problem,  it 
can  not  be  considered,  as  I  have  said  before,  a  complete  exposition  of 
international  law  on  the  subject;  and  the  legitimacy  of  such  or  such 
act  can  not  be  assumed  simply  because  this  convention  has  not  pro- 
hibited it.  This  is  the  principle  which  we  desire  to  assert,  and  which 
can  never  be  ignored  by  any  state,  whatever  may  be  its  power." 

Baron  Marschall  von  Bieberstein,  of  the  German  dele- 
gation, immediately  replied  to  Sir  Ernest  Satow  as  follows : 

"In  view  of  the  declaration  just  made  by  the  honorable  delegate 
from  Great  Britain,  I  desire  to  repeat  what  I  have  said  already  in  the 
commission:  'A  belligerent  who  sinks  mines  assumes  very  heavy 
responsibility  towards  neutrals  and  towards  peaceful  navigation. 
On  this  point  we  are  all  agreed.  No  one  will  resort  to  this  weapon 
without  absolutely  urgent  military  reasons.  Now,  military  operations 
are  not  controlled  solely  by  the  prescriptions  of  international  law. 
There  are  other  factors ;  conscience,  good  sense,  and  the  sentiment  of 
duties  imposed  by  the  principles  of  humanity  will  be  the  surest  guides 
for  the  conduct  of  sailors,  and  will  form  the  most  effective  guaranty 
against  abuses.  The  officers  of  the  German  navy  —  I  proclaim  it 
aloud  —  will  always  fulfill  in  the  strictest  manner  the  duties  prescribed 
by  the  unwritten  law  of  humanity  and  civilization. 

"'I  need  not  tell  you  that  I  recognize  entirely  the  importance  of 
codifying  rules  to  be  followed  in  war.  But  we  should  avoid  the  pro- 
mulgation of  rules  whose  strict  observance  may  be  rendered  impos- 
sible by  the  force  of  circumstances.  It  is  of  the  first  importance 
that  the  international  maritime  law  which  we  desire  to  enact  should 
contain  only  those  clauses  whose  enforcement  is  possible  from  the 


IOO  THE   TWO   HAGUE   CONFERENCES 

military  point  of  view,  —  even  under  exceptional  circumstances. 
Otherwise,  the  respect  for  law  will  be  diminished  and  its  authority 
destroyed.  Hence  it  seems  to  us  preferable  to  maintain  for  the 
present  a  certain  reserve,  in  expectation  that  within  five  years  we 
shall  be  in  a  better  position  to  find  a  solution  acceptable  to  everyone.' 
"As  to  sentiments  of  humanity  and  civilization,  I  can  not  admit 
that  any  government  or  nation  is  in  this  sense  superior  to  that  which 
I  have  the  honor  to  represent." 

With  this  exchange  of  views  between  the  chief  naval  and 
the  chief  military  power  of  Europe,  the  conference  passed 
finally  from  the  subject  of  submarine  mines. 

2.    Naval  Bombardment 

A  proposition  was  made  in  the  Conference  of  1899 
that  the  rule  adopted  for  land  warfare  as  to  the  bom- 
bardment of  undefended  cities,  etc.,  should  be  extended 
to  naval  warfare  also.  But  it  was  decided  that  the  ques- 
tion was  too  complicated  to  be  solved  at  that  time,  and 
the  conference  contented  itself  with  passing,  unanimously,1 
a  desire  [voeu]  that  it  be  referred  to  the  consideration  of 
a  later  conference. 

It  was  mentioned,  as  has  been  said,  in  the  Russian 
programme  for  the  second  conference,  and  was  assigned 
to  the  first  subcommission  of  the  III  Commission.  Its 
consideration  was  postponed  until  after  the  discussion  of 
the  question  of  submarine  mines;  but  at  the  first  session 
of  the  subcommission  it  was  introduced  by  the  United 
States  delegation,  which  proposed  that  the  bombardment, 
by  a  naval  force,  of  unfortified  and  undefended  towns, 
villages,    or   buildings,  be   prohibited.     This    prohibition 

1  The  British  delegation  refrained  from  voting,  because  of  lack  of  instruc- 
tions. 


WARFARE   ON   THE   SEA  101 

included  bombardment  for  non-payment  of  ransom; 
but  the  proposition  admitted  that  such  towns,  villages,  or 
buildings  are  liable  to  bombardment  (after  due  notice) 
when  reasonable  requisitions  for  provisions  and  supplies 
essential  to  the  naval  force  at  the  time  of  the  requisition 
are  withheld.  And  it  also  admitted  that  such  places  are 
liable  to  the  damages  incidental  to  the  destruction  of 
military  or  naval  establishments,  public  depots  of  muni- 
tions of  war,  or  vessels  of  war  in  port. 

This  proposition  was  taken  as  the  basis  of  discussion, 
and,  although  amended  in  several  particulars,  its  substance 
was  adopted  by  the  conference  and  embodied  in  some 
important  rules.  By  unanimous  vote,  the  bombardment 
of  undefended  ports,  towns,  villages,  dwellings,  or  build- 
ings was  prohibited.  A  difference  of  opinion  arose, 
however,  as  to  the  precise  meaning  of  the  term  "un- 
defended." General  Poortugael,  of  the  Netherlands, 
insisted  that  an  unfortified  town  situated  near  a  coast 
defended  by  soldiers  and  cannon  (The  Hague,  for  exam- 
ple) should  be  considered  an  " undefended"  town.  This 
argument  was  informally  acquiesced  in,  but  it  was  not 
deemed  possible  to  formulate  a  precise  definition  of  the 
term.  It  was  definitely  voted,  however,  that  a  place  may 
not  be  bombarded  even  though  defended  by  automatic 
submarine  mines  of  contact  anchored  before  its  port. 
This  last  proviso  was  vigorously  opposed  by  Captain 
Ottley,  of  Great  Britain,  who  argued  that  a  submarine 
mine  is  as  much  of  a  defense  as  are  cannon ;  that  the  fire 
of  a  cannon  can  rarely  destroy  a  vessel  in  the  offing, 
whereas  the  explosion  of  a  single  mine  will  certainly  do 
so;  that  it  is  in  the  interests  of  all  neutral  countries  to 
free  the  sea  of  these  murderous  instruments,  since,  being 


102  THE  TWO   HAGUE   CONFERENCES 

entirely  concealed,  they  are  equally  dangerous  to  friends 
and  enemies,  neutrals  and  non-combatants;  that,  if 
ports  are  undefended  otherwise  than  by  submarine  mines, 
they  are  immune  from  bombardment  and  hence  do  not 
need  the  mines  to  protect  them;  and  that  it  would  be  an 
outrage  upon  a  belligerent,  approaching  a  so-called  unde- 
fended port,  to  be  destroyed  by  a  mine  belonging  to  the 
port  which  claimed  inviolability  for  itself. 

This  line  of  argument  induced  six  delegations '  to 
reserve  their  votes  on  the  proviso;  but  the  argument  that 
a  submarine  mine  was  only  a  passive  instrument  of  de- 
struction, and  would  be  made  harmful  to  the  belligerent 
only  when  he  himself  approached  it,  was  accepted  as 
conclusive  by  a  large  majority  of  the  delegations,  all  of 
which,  with  the  exception  of  the  six  referred  to,  voted 
for  the  proviso. 

It  was  also  voted,  unanimously  and  without  discussion, 
that  the  bombardment  of  undefended  ports,  etc.,  for  the 
non-payment  of  requisitions  of  money,  should  be  pro- 
hibited; and  that  pillage,  even  of  those  towns  taken  by 
assault,  should  also  be  prohibited. 

In  the  case  of  those  ports,  etc.,  which  contain  military 
works,  military  or  naval  establishments,  depots  of  arms 
or  materials  of  war,  workshops  and  plants  capable  of 
being  utilized  for  the  needs  of  a  fleet  or  army,  or  whose 
harbors  contain  war  ships,  the  commander  of  a  naval 
force  may  demand  the  destruction  of  these  things  by  the 
local  authorities  within  a  reasonable  time,  and  if  this 
demand  is  not  complied  with  and  no  other  method  of 
destroying  them  is  possible,  he  may  then  destroy  them  by 
bombardment.     The  proviso  that   a  "reasonable   time" 

1  Great  Britain,  Germany,  France,  Spain,  Japan,  and  China. 


WARFARE    ON   THE   SEA 


103 


must  be  given  to  the  local  authorities  before  the  bombard- 
ment is  begun,  was  vigorously  opposed  by  Captain  Ottley, 
of  Great  Britain,  for  the  reason  that  a  fleet  anchored 
within  the  harbor  of  an  undefended  port  might  profit  by 
any  delay  to  procure  reinforcements  and  thus  avoid 
destruction  or  even  achieve  a  victory.  The  naval  dele- 
gates of  various  countries  supported  this  view  of  the  mat- 
ter, and  it  was  decided  to  adopt  the  further  proviso  that 
if  military  exigencies  require  immediate  bombardment, 
and  do  not  admit  of  according  a  delay,  the  bombardment 
may  take  place  at  once,  but  that  the  commandant  of  the 
bombarding  fleet  must  take  all  requisite  measures  to 
cause  the  unfortified  city  itself  to  suffer  the  least  possible 
inconvenience.  This  proviso  was  adopted  by  a  unani- 
mous vote,  with  the  exception  of  that  of  Haiti's  delega- 
tion, which  reserved  its  vote  upon  it  for  the  reason  that 
"it  seems  very  rigorous  indeed  to  admit  that  even  the 
unexpected  presence,  within  an  undefended  port,  of  war 
ships  which  the  enemy  might  think  should  be  destroyed, 
is  sufficient  to  expose  the  town  and  its  inhabitants  to  the 
results  of  an  unexpected  and  immediate  bombardment."  1 
It  was  further  conceded  2  that  if  the  local  authorities 
of  undefended  ports,  etc.,  refuse  to  comply  with  a  formal 
demand  for  stores  or  provisions  necessary  to  the  present 
needs  of  the  naval  force  near  it,  then,  after  express  noti- 
fication, the  commander  of  the  said  force  may  proceed  to 
a  bombardment.  The  Spanish  delegation  proposed  that 
these  stores  or  provisions  should  be  paid  for  at  current 


1  M.  van  den  Heuvel,  of  Belgium,  also  opposed  this  proviso,  and  voted 
against  it,  in  the  commission;  but  in  the  conference,  Belgium's  vote  was 
cast  for  it. 

2  By  unanimous  vote,  except  that  Chili's  delegation  reserved  its  vote. 


104  THE   TWO   HAGUE   CONFERENCES 

prices,  and  that  they  should  be  limited  to  the  quantity 
which  can  be  demanded  in  a  neutral  port.  The  last  of 
these  propositions  failed  of  adoption ;  but  it  was  provided 
that  such  stores  or  provisions  may  be  requisitioned  only 
with  the  sanction  of  the  commandant  himself,  and  shall 
be  paid  for  in  cash,  whenever  possible,  or  vouched  for, 
otherwise,  by  written  receipts.  On  the  motion  of  the 
Turkish  delegation,  it  was  also  provided  that  such  requi- 
sitions shall  be  in  accord  with  the  resources  of  the  place 
on  which  they  are  made. 

While  conceding  the  right  of  bombardment  of  unde- 
fended ports,  etc.,  under  the  exceptional  circumstances 
stated  above,  the  conference  voted  that  every  necessary 
measure  shall  be  taken  by  the  commandant  of  the  bom- 
barding force  to  save  from  injury,  as  far  as  possible,  the 
buildings  devoted  to  religion,  art,  science,  and  benevolence, 
historic  monuments  and  hospitals,  on  condition  that  they 
are  not  used  at  the  time  for  a  military  purpose.  It  was 
made  the  duty  of  the  inhabitants  of  a  bombarded  town 
to  designate  such  buildings  by  visible  signs,  consisting 
of  large,  stiff,  rectangular  panels,  divided  diagonally 
into  two  colored  triangles,  the  upper  one  black  and  the 
lower  one  white. 

3.     Merchant  Ships  transformed  into  Cruisers 

This  topic  was  mentioned  in  the  Russian  programme 
and  was  the  first  one  assigned  to  the  IV  Commission. 
When  it  was  taken  up  for  discussion,  seven  propositions 
concerning  it  were  presented  by  various  delegations. 
None  of  these  propositions  suggested  the  abolition  of 
the  practice  of  transforming  merchant  ships  into  cruisers, 


WARFARE    ON   THE    SEA 


*°5 


although  Brazil's  first  delegate  said  that  there  is  danger 
of  its  restoring  in  an  indirect  manner  the  system  of  pri- 
vateering which  the  Declaration  of  Paris  of  1856  pro- 
hibited. The  Japanese  delegation  proposed  that  the 
transformation  of  fishing  boats  into  war  vessels  be  pro- 
hibited ;  and  this  prohibition  was  implied  in  the  exemption 
later  accorded  to  such  boats  from  capture. 

Lord  Reay,  on  behalf  of  Great  Britain,  moved  that  every 
merchant  ship,  whether  belligerent  or  neutral,  which  is  em- 
ployed in  the  transport  of  marines,  land  troops,  munitions 
of  war,  combustibles,  provisions,  drinking  water,  or  any 
other  kind  of  naval  supplies,  shall  be  considered  an  "aux- 
iliary war  vessel"  and  treated  as  such;  also  that  the  same 
treatment  should  be  accorded  to  any  vessel  designed  to 
repair  war  ships,  or  to  carry  dispatches  or  transmit  infor- 
mation, if  the  said  vessel  is  obliged  to  conform  to  the 
sailing  orders  communicated  to  it  directly  or  indirectly 
by  a  belligerent  fleet.  It  was  obvious  that  this  proposi- 
tion raised  the  question  of  the  definition  of  "contraband 
of  war,"  and  that  it  provided  for  a  kind  of  involuntary 
and  unofficial  transformation  of  merchant  vessels  into 
war  ships.  It  was  therefore  vigorously  combated  on  both 
these  grounds,  and  Lord  Reay  finally  withdrew  it  from 
further  consideration  by  the  existing  conference,  saying 
that  it  should  be  submitted  to  the  next  conference  after 
a  careful  study  of  the  question  by  the  various  govern- 
ments, and  that  meanwhile  such  vessels  would  be  subject, 
as  rendering  "hostile  assistance,"  to  the  principles  of 
international  law. 

The  Japanese  and  the  British  propositions  were  the 
only  ones  which  had  to  do  with  the  question  of  what 
vessels  may  be  transformed  into  war  ships;    and  it  was 


106  THE  TWO   HAGUE   CONFERENCES 

unanimously  agreed,  by  silent  assent  and  without  formal 
vote,  that  "in  time  of  war,  ships  belonging  to  the  merchant 
marine  of  any  power  may  be  incorporated  in  its  war 
fleets."  But  it  was  also  unanimously  agreed,  by  formal 
vote,  that  "it  is  desirable  to  define  the  conditions  under 
which  this  operation  may  be  effected,  in  so  far  as  the  rules 
regarding  it  are  generally  accepted."  The  commission 
then  entered  upon  a  debate  as  to  the  duration,  place,  and 
method  of  the  transformation. 

Austria,  supported  by  Germany,  proposed  that  the 
transformation  should  be  made  for  the  entire  duration  of 
the  war,  and  that  a  retransformation  should  not  occur 
until  the  war  had  ended.  This  proposition  was  based  on 
the  argument  that  a  ship  should  be  all  one  thing  or  all  the 
other,  —  a  ship  of  war  or  a  merchant  ship,  and  that  it 
should  not  be  permitted  to  change  its  character,  and  with 
that,  its  responsibilities,  at  will.  Against  this,  Japan 
urged  that  belligerents  should  not  be  hampered,  in  this 
matter,  by  too  strict  rules;  and  the  majority  adhered  to 
this  view  and  refused  to  enact  any  rule  as  to  the  duration 
of  the  transformation. 

Italy,  supported  by  Mexico,  proposed  that  merchant 
ships  should  be  forbidden  to  become  war  ships  either  in 
the  waters  of  another  state  or  on  the  high  seas.  But, 
while  it  was  generally  admitted  that  such  transformation 
must  not  occur  in  the  waters  of  a  neutral  state,  it  was 
argued  by  Germany  and  Russia  that  it  should  be  permitted 
on  the  high  seas.  Belligerents  transform  captured  mer- 
chant ships  into  war  vessels  on  the  high  seas ;  why  should 
they  not  transform  their  own  merchant  ships  there  also? 
Such  was  the  argumentative  question,  which  Great  Britain 
answered  by  saying,  first,  that  such  a  transformation  is 


WARFARE   ON  THE   SEA  107 

an  act  of  sovereignty,  which  can  be  accomplished  only  in 
those  places  where  sovereignty  can  be  exercised;  and, 
second,  that  such  transformation  on  the  high  seas  would 
leave  neutral  nations  in  ignorance  of  the  character  as- 
sumed by  a  ship  which  had  left  its  last  port  as  a  merchant 
vessel.  France,  in  supporting  the  German  view  of  the 
question,  answered  Great  Britain's  arguments  by  say- 
ing that  a  state  has  full  sovereignty  on  the  high  seas 
over  all  the  ships  under  its  flag ;  and  that  neutral  nations 
could  easily  be  informed,  and  should  immediately  be 
informed,  of  the  transformation  by  the  belligerent  pub- 
lishing the  vessel  on  its  official  list  of  war  ships.  Japan 
rejected  both  the  German  proposal  to  permit  the  trans- 
formation on  the  high  seas,  and  the  British  proposal  to 
restrict  it  exclusively  to  the  home  ports  of  belligerents; 
and  proposed  as  a  compromise  to  permit  it  in  waters 
belonging  to  lands  occupied  by  belligerents  as  well  as  in 
their  own  waters. 

This  discussion  over  the  place  of  transformation  was 
continued  in  a  special  committee  which  finally  submitted 
the  question  to  a  vote,  with  the  result  that  seven  delega- 
tions favored  the  German  proposal  as  to  the  high  seas, 
and  nine  delegations  followed  England's  lead  against 
it.  In  view  of  the  indecisiveness  of  this  vote,  the  commis- 
sion and  the  conference  voted  that  "the  high  contracting 
parties  not  having  been  able  to  agree  on  the  question,  .  .  . 
it  is  understood  that  this  question  stands  entirely  apart 
and  is  not  at  all  implicated  in  the  rules  adopted." 

The  rules  adopted  were  six  in  number,  and  provided 
that  a  merchant  ship  transformed  into  a  war  ship  can  have 
the  rights  and  duties  pertaining  to  the  latter  only  when 
it   is   placed    under   the  direct  authority,  the  immediate 


108  THE  TWO   HAGUE   CONFERENCES 

control,  and  the  responsibility  of  the  state  whose  flag 
it  flies;  that  such  transformed  ships  should  bear  the  dis- 
tinctive external  marks  of  the  war  ships  of  their  nation; 
that  their  commanders  should  be  in  the  service  of  the  state 
and  duly  commissioned  by  the  competent  authorities; 
that  their  crews  must  be  subjected  to  military  discipline; 
that  they  themselves  are  bound,  in  their  operations,  to 
conform  to  the  laws  and  customs  of  war;  and  that  the 
belligerent  to  whom  they  belong  should  mention  their 
transformation,  as  soon  as  possible,  on  the  list  of  its  war 
ships. 

These  rules  were  voted  in  the  commission  unanimously, 
with  six  abstentions,  and  in  the  plenary  session  of  the 
conference  by  thirty-two  ayes,  one  reservation,1  nine  ab- 
stentions,2 and  two  absences.3 

Before  voting  in  favor  of  these  rules  the  delegations  of 
Spain  and  Mexico  announced  to  the  conference  that  their 
respective  countries  accepted  the  Declaration  of  Paris 
of  1856. 

When  the  rules  were  voted  in  the  commission,  General 
Porter,  on  behalf  of  the  United  States  delegation,  said 
that  the  question  of  such  regulation  was  of  interest  only 
to  those  states  which  had  signed  the  Declaration  of  Paris; 
that  the  United  States  had  not  signed  that  declaration, 
because  it  did  not  recognize  the  principle  of  the  inviola- 
bility of  private  property;  and  that  therefore  the  United 
States  delegation  would  abstain  from  voting  on  the  pro- 
posed regulations. 


1  Turkey,  whose  delegation  had  received  no  instructions. 

2  United  States,  Colombia,  China,  Dominican  Republic,  Ecuador,  Guate- 
mala, Persia,  Salvador,  and  Uruguay. 

3  Nicaragua  and  Paraguay. 


WARFARE    ON   THE   SEA  Tog 

B.   THE   GENEVA   CONVENTION 

i.   Hospital  Ships 

a.    The  Conference  of  i8gg 

The  document  referred  to  generally  as  "The  Geneva 
Convention,"  or  "The  Red  Cross  Rules,"  was  called 
officially  "The  Convention  of  Geneva  for  the  Improve- 
ment of  the  Condition  of  Soldiers  wounded  in  Armies  in 
the  Field."  It  consisted  of  ten  articles,  agreed  to  by 
the  representatives  of  twelve  sovereigns,1  and  based  on 
the  desire  expressed  in  its  preamble,  "to  alleviate,  in  so 
far  as  they  can,  the  evils  inseparable  from  war,  to  sup- 
press the  useless  hardships  and  improve  the  condition  of 
soldiers  wounded  on  the  field  of  battle."  It  was  due 
largely  to  the  generous  initiative  of  Switzerland,  and  was 
signed  at  Geneva  by  the  representatives  of  the  twelve 
sovereigns  on  the  2  2d  of  August,  1864. 

Four  years  later,  October  20,  1868,  the  representatives 
of  fourteen  sovereigns2  adopted  at  a  conference  in  Geneva 
fifteen  additional  articles.  Five  of  these  were  amend- 
ments to  the  earlier  articles,  and  the  other  ten  were  de- 
signed "to  apply  to  fleets  the  advantages  of  the  earlier 
convention." 

It  was  to  these  articles  that  the  fifth  and  sixth  items  of 
the  Russian  programme  for  the  first  conference  referred 

1  These  were  the  sovereign  rulers  of  the  Netherlands,  Baden,  Belgium, 
Denmark,  Spain,  France,  Hesse,  Italy,  Portugal,  Prussia,  Switzerland,  and 
Wiirtemberg. 

2  All  of  the  former  sovereigns  were  represented,  with  the  exception  of  those 
of  Spain,  Hesse,  Portugal,  and  Prussia;  and  in  place  of  these,  were  repre- 
sentatives from  the  North  German  Confederation,  Austria,  Bavaria,  Great 
Britain,  Sweden  and  Norway,  and  Turkey. 


HO  THE  TWO   HAGUE   CONFERENCES 

in  the  words:  "An  application  to  naval  warfare  of  the 
stipulations  of  the  Geneva  Convention  of  1864,  on  the 
basis  of  the  additional  Articles  of  1868;  and  a  neutraliza- 
tion of  ships  and  boats  employed  in  saving  drowning 
sailors  during  or  after  naval  battles."  But  as  only  Articles 
VI  to  XV  of  the  Convention  of  1868  applied  to  naval 
warfare,  these  alone  were  taken  up  by  the  conference  for 
discussion.  This  discussion  was  carried  through  a  special 
committee  of  experts,  a  subcommission,  the  II  Com- 
mission, and  the  conference;  it  lasted  from  May  25  to 
June  20,  and  was  productive  of  some  of  the  most  useful 
results  of  the  conference. 

The  first  step  was  to  admit,  without  opposition,  that 
it  was  desirable  to  apply  the  Geneva  articles  to  naval 
warfare.  This  step  was  in  itself  of  marked  importance; 
for  the  articles  of  1868  had  remained  a  dead  letter,  and 
the  difficulties  of  their  application  were  obviously  so  great 
that  it  seemed  impossible  to  several  of  the  naval  powers 
to  accomplish  anything  in  this  direction  at  the  Conference 
of  1899.  But  thanks  to  the  liberal  and  resolute  policy 
of  a  few  of  the  largest  naval  powers,  the  desirability  of 
the  step  was  admitted  and  the  conference  proceeded  to 
take  it. 

The  first  difficulty  was  to  define  precisely  the  scope 
of  the  term  "hospital  ships."  This  term  was  given  a 
generous  scope  and  was  made  to  include  three  kinds: 
1.  Military  hospital  ships,  that  is  to  say,  ships  constructed 
or  assigned  by  states  especially  and  solely  for  the  purpose 
of  assisting  the  wounded,  sick,  or  shipwrecked.1 

1  The  French  word  used  here  is  naufrages,  the  nearest  translation  of  which 
in  English  is  shipwrecked;  but  it  implies,  not  sailors  wrecked  by  storm  on 
coasts  or  rocks,  but  those  who  have  been  placed  in  danger  of  drowning  as  a 
result  of  naval  combat. 


WARFARE   ON  THE   SEA  III 

2.  Hospital  ships  equipped  wholly  or  in  part  at  the 
cost  of  private  individuals  or  officially  recognized  relief 
societies,  and  belonging  to  one  of  the  belligerent  nations. 

3.  Hospital  ships  equipped  wholly  or  in  part  at  the 
cost  of  private  individuals  or  officially  recognized  soci- 
eties of  neutral  nations.  In  addition  to  these  three  kinds 
of  hospital  ships,  strictly  so  called,  neutral  merchantmen, 
yachts,  or  other  non-military  vessels,  having  or  taking  on 
board  sick,  wounded,  or  shipwrecked  belligerents,  were 
also  exempted  from  capture  for  so  doing. 

All  of  these  four  kinds  of  vessels  are  to  be  respected 
and  exempt  from  capture,  provided  they  fulfill  certain 
conditions.  The  "military,"  or  government,  hospital 
ships  must  have  their  names  communicated,  before  they 
are  employed,  to  the  belligerents;  the  private  or  semi- 
private  hospital  ships  belonging  to  belligerent  nations, 
or  to  neutrals,  must  have  commissions  from  their  govern- 
ments, and  their  names  must  be  communicated  to  the 
belligerents  before  they  are  employed.  All  three  kinds 
of  hospital  ships  must  afford  relief  to  the  wounded,  sick, 
and  shipwrecked  of  the  belligerents,  irrespective  of  their 
nationality;  they  must  not  be  used  for  any  military  pur- 
pose; they  must  not  in  any  way  hamper  the  movements 
of  the  combatants;  they  must  act  at  their  own  risk  and 
peril  during  and  after  an  engagement ;  and  the  belligerents 
have  the  right  to  control  and  visit  them,  refuse  their 
assistance,  order  them  away,  make  them  take  a  certain 
course,  put  a  commissioner  on  board,  or  even  detain 
them  if  important  circumstances  require  it.  And  the 
neutral  merchantmen  and  yachts  are  liable  to  capture 
for  any  violation  of  neutrality  committed  by  them. 

To  distinguish  hospital  ships  from  war  ships,  as  well 


112  THE  TWO   HAGUE   CONFERENCES 

as  to  prevent  their  being  used  for  military  purposes,  it 
was  agreed  that  the  "military,"  or  government,  hospital 
ships  shall  be  distinguished  by  being  painted  white  out- 
side, with  a  horizontal  band  of  green  about  one  and  a  half 
meters  wide;  that  the  private  or  semiprivate  hospital 
ships  belonging  to  the  belligerents  or  to  neutrals  shall  be 
distinguished  by  being  painted  white  outside  with  a 
horizontal  band  of  red  about  one  and  a  half  meters  wide ; 
and  that  all  hospital  ships  shall  make  themselves  known 
by  hoisting,  together  with  their  national  flag,  the  white 
flag  with  a  red  cross  provided  by  the  Geneva  Convention. 
The  discussion  of  these  three  questions  — ■  the  meaning 
of  "hospital  ships,"  the  restrictions  imposed  upon  them, 
and  their  distinguishing  signs  —  was  an  animated  and 
interesting  one.  On  the  first  point,  Captain  Scheme,  of 
Russia,  argued  that  by  placing  all  hospital  ships  under  the 
control  of  the  admiral  of  one  or  the  other  of  the  belligerent 
fleets,  the  field  of  battle  would  not  be  invaded  by  ships 
of  a  private  character.  But,  on  the  motion  of  M.  Renault, 
of  France,  it  was  decided  that  private  or  semiprivate 
ships  should  be  permitted,  provided  they  were  kept  under 
the  control  of  one  or  other  of  the  belligerents.  This  was 
a  very  important  decision,  as  it  enables  the  hospital  ships 
of  the  Red  Cross  Society  and  of  other  societies  and  in- 
dividuals to  participate  in  the  work  of  rescue.  The  French 
delegates  also  prevented  this  participation  from  being 
restricted  by  a  Russian  proposal  that  all  hospital  ships 
should  be  constructed  on  such  a  model  that  they  could 
not  be  used  as  ships  of  war;  the  French  argument  pre- 
vailed that  the  previous  notice  and  other  restrictions  re- 
quired of  them  would  be  sufficient  to  prevent  fraud. 
It  was  also  argued,  by  Captain  Alahan,  of  the  United 


WARFARE   ON  THE   SEA  1 13 

States,  among  others,  that  neutral  hospital  ships  and 
merchantmen  had  been  conceded  a  status  and  immunities 
hitherto  unknown  and  not  now  justifiable;  and  Captain 
Marian  went  so  far  as  to  say:  "Upon  reflection  I  am 
satisfied  that  no  necessity  exists  for  the  authorization  of 
hospital  vessels  under  a  neutral  flag  upon  the  scene  of 
naval  war,  and  that  the  adhesion  of  our  government  to 
such  a  scheme  may  be  withheld  without  injury  to  any 
one."  But  this  restricted  policy  was  rejected  in  the  in- 
terests of  humanity. 

On  the  other  hand,  no  delegate  proposed  that  a  mer- 
chantman belonging  to  one  of  the  belligerent  powers, 
and  having  on  board  sick  or  wounded,  should  also  be 
respected  and  exempt  from  capture ;  the  committee  report- 
ing the  resolutions  commented  on  this  fact  as  follows: 
"The  consequence  of  this  silence  is  that  such  ships  remain 
under  the  rule  of  the  common  law,  and  hence  are  exposed 
to  capture;  this  rigorous  consequence  appears  to  us  only 
logical  and  in  conformity  with  principles." 

As  to  conditions  imposed  on  hospital  ships,  it  was  sug- 
gested that  notification  of  their  character  should  be  made 
"before  the  opening  of  hostilities";  but  this  was  rejected 
in  favor  of  the  phrase  "before  they  are  employed."  This 
decision  was  made  for  the  reason  that  it  would  be  cruel  to 
prohibit  belligerents  from  developing  their  hospital  service 
after  war  has  commenced  and  in  accordance  with  its 
exigencies.  It  was  also  argued  that  since  "military,"  or 
government,  hospital  ships  were  to  be  exempt,  by  Article  I, 
from  the  rules  applying  to  men-of-war  during  their  stay 
in  neutral  harbors,  a  notification  of  their  names  and  use 
should  be  made  to  neutral  states  as  well  as  to  the  belliger- 
ents themselves.     But  the  reply  was  made  that  the  dis- 


114      THE  TWO  HAGUE  CONFERENCES 

tinguishing  marks  of  a  hospital  ship  would  be  sufficient 
notice  of  its  character  when  entering  a  neutral  port; 
although  it  was  admitted  that  it  would  be  desirable  for 
such  notices  to  be  inserted  in  the  official  journals  of  the 
belligerents,  so  that  all  the  world  might  be  informed. 

In  order  to  insure  to  the  belligerents  the  efficient  con- 
trol of  the  private  or  semiprivate  hospital  ships  fitted 
out  by  neutrals,  it  was  urged  (by  Captain  Mahan,  among 
others)  that  such  vessels,  "being  engaged  in  service  iden- 
tical with  that  of  belligerent  hospital  vessels  to  which  it 
was  proposed  to  extend  the  utmost  possible  immunity, 
should  frankly  enter  the  belligerent  service  by  hoisting 
the  flag  of  the  belligerent  to  which  it  offered  its  services. 
This  being  permitted  by  general  consent,  and  for  purposes 
purely  humanitarian,  would  constitute  no  breach  of  neu- 
trality, while  the  control  of  either  belligerent,  when  in 
presence,  could  be  exercised  without  raising  those  vexed 
questions  of  neutral  rights  which  the  experience  of  mari- 
time warfare  shows  to  be  among  the  most  difficult  and 
delicate  problems  that  belligerents  have  to  encounter." 
This  proposition  was  opposed  vigorously  by  Captain 
Siegel,  of  Germany,  who  argued  that  "to  compel  such 
vessels  to  hoist  a  foreign  flag  would  be  an  act  incompatible 
with  the  sovereignty  of  the  state  to  which  they  belong,  — 
an  act  which  could  be  deemed  but  little  friendly  by  the 
power  not  favored,  and  which  would  even  constitute, 
perhaps,  a  violation  of  strict  neutrality  to  the  advantage 
of  one  of  the  belligerents."  This  view  of  the  question 
prevailed,  and  all  hospital  ships  were  permitted  to  carry 
the  flag  of  their  own  country. 

When  the  question  as  to  the  distinctive  flag  for  hospital 
ships  arose  in  the  subcommission,  the  representative  of 


WARFARE    ON   THE   SEA  1 15 

Turkey  said  that  in  all  cases  where  Turkish  hospital  ships 
have  to  perform  their  mission,  the  emblem  of  the  Red  Cross 
would  be  replaced  by  the  Red  Crescent;  he  said  in  ad- 
dition that,  since  Ottoman  ships  of  war  have  always 
respected  the  Red  Cross  as  the  emblem  of  the  Geneva 
Convention,  he  would  express  the  desire  that  by  way 
of  reciprocity  the  Red  Crescent  should  be  assured  the 
same  respect.  The  representative  of  Siam  said  that  his 
government  places  beside  the  Red  Cross,  on  the  flag  of 
the  Geneva  Convention,  an  emblem  sacred  in  the  Buddhist 
religion,  also  in  red  and  called  "The  Flame."  And  at  a 
later  meeting  of  the  full  commission  the  representative  of 
Persia  made  the  following  declaration: 

"In  accordance  with  instructions  which  I  have  just  received  from 
Teheran,  I  am  directed  to  inform  the  commission  that  the  Persian 
Government  will  claim,  as  a  distinctive  flag,  a  white  flag  with  the  Red 
Sun.  The  adoption  of  the  Red  Cross  as  the  emblem  of  hospitals  was 
an  act  of  courtesy  on  the  part  of  the  governments  signing  the  Geneva 
Convention  towards  the  honorable  government  of  Switzerland,  whose 
national  flag  was  adopted,  with  the  colors  reversed.  We  should 
be  happy  to  extend  the  same  mark  of  courtesy  to  the  honorable  gov- 
ernment of  Switzerland,  if  that  were  not  impossible  because  of  agita- 
tions which  would  result  from  it  in  the  Mussulman  army." 

Captain  Mahan,  of  the  United  States,  remarked  that  the 
emblem  of  the  Red  Cross  has  a  religious  character  which 
is  addressed  particularly  to  Christian  states,  and  he 
thought  that  it  would  be  better  to  adopt  another  one  which 
would  be  recognized  by  all.  But  the  president  of  the 
subcommission  remarked  that  it  was  not  competent  to 
enter  on  the  discussion  of  a  proposition  tending  to  revise 
a  clause  of  the  Geneva  Convention.  This  view  pre- 
vailed, and  the  conference  adopted  the  Red  Cross  as  the 


Il6  THE   TWO   HAGUE   CONFERENCES 

emblem  of  hospital  ships,  but  recorded  the  declarations 
of  Turkey,  Siam,  and  Persia  regarding  it ;  and  these  three 
governments  signed  it  as  adopted. 

b.    The  Conference  of  igoy 

The  last  item  on  the  Russian  programme  for  the  second 
conference  was  "the  additions  to  be  made  to  the  Conven- 
tion of  1899  f°r  the  adaptation  to  maritime  war  of  the  prin- 
ciples of  the  Convention  of  Geneva  of  1864,  revised  in 
1906."  l  This  topic  was  assigned  to  the  second  subcom  mis- 
sion of  the  III  Commission,  and  was  the  first  topic  com- 
pleted by  the  conference.  When  it  came  up  for  discussion, 
the  delegations  from  Germany  and  France  proposed 
modifications  of  detail  in  the  former  convention,  while 
certain  other  delegations,  notably  that  of  the  Netherlands, 
proposed  modifications  in  its  principles. 

As  to  the  kind  of  vessels  to  be  used  for  hospital  purposes, 
it  was  decided  that,  instead  of  permitting  neutral  merchant- 
men, yachts,  and  other  non-military  boats  to  take  on  board 
the  sick,  wounded,  and  shipwrecked,  and  then  to  hold 
them  exempt  from  capture  [as  was  done  by  Article  VI 
of  the  former  convention],  belligerents  should  be  given 
the  right  of  requesting  them  to  do  so,  and  that  only  in 
case  they  acted  upon  such  request,  and  not  on  their  own 
initiative,  were  they  to  be  given  "special  protection  and 
certain  immunities."  This  restriction  of  the  charitable 
activity  of  neutral  vessels  was  defended  on  the  ground  that 
such  rescue  work  is  not  a  right  conceded  to  neutral  ships 
by  international  law,  or  by  logic  or  humanity;  but  that 
to  request  it  should  be  a  right  conceded  to  belligerents 

1  For  this  revision,  see  later,  page  193. 


WARFARE   ON  THE   SEA  117 

which  they  would  not  be  slow  to  exercise,  and  that  hu- 
manity would  dictate  compliance  with  the  request  on  the 
part  of  neutral  vessels. 

In  regard  to  distinguishing  marks,  it  was  decided  that 
hospital  ships  should  hoist  at  night  three  lights,  green, 
white,  green,  placed  vertically  one  under  the  other;  and 
when  to  this  plan  the  objection  was  made  that  it  would 
betray  to  the  enemy  the  maneuvers  of  the  fleet  with 
which  the  hospital  ships  sailed,  it  was  decided  that  this 
distinctive  sign  should  be  used  only  in  time  of  battle. 

The  question  of  the  flag  under  which  neutral  hospital 
ships  should  operate  gave  rise  in  the  second  conference 
as  in  the  first  to  considerable  discussion.  M.  Renault,  of 
France,  argued  in  favor  of  the  independence  of  such  ships 
being  maintained  by  the  use  of  the  flag  of  the  neutral 
nation;  but  the  belief  prevailed  that  such  independence 
would  result  in  serious  interference  with  the  military 
rights  of  belligerents.  It  was  accordingly  decided  that 
neutral  hospital  ships  complying  with  the  request  of  a 
belligerent  to  render  aid  should  hoist  that  belligerent's 
flag,  together  with  the  Red  Cross  flag,  and  be  submitted 
to  the  belligerent's  control.  This  was  the  proposition 
which  was  supported  in  1899  by  Captain  Mahan,  of  the 
United  States,  and  by  several  other  delegates,  and  which 
was  vigorously  and  successfully  opposed  by  Captain 
Siegel,  of  Germany.  In  the  1907  conference,  Captain 
(now  Admiral)  Siegel  admitted  that  in  view  of  the  latitude 
given  to  neutral  hospital  ships  in  regard  to  their  arma- 
ment, their  personnel,  and  their  use  of  wireless  telegraphy, 
it  would  be  desirable  that  the  belligerent  flag  should  re- 
place that  of  the  neutral  nation. 

As  to  the  armament  of  such  ships,  it  was  voted  that 


Il8  THE  TWO  HAGUE  CONFERENCES 

"they  have  no  need  of  other  cannon  than  those  which  are 
requisite  for  the  making  of  signals." 

The  use  of  radiography  on  board  hospital  ships  was 
permitted  in  the  interest  of  efficiency;  and  the  argument 
that  it  might  be  used  to  send  dispatches  injurious  to  the 
belligerent  was  met  by  the  statement  that  the  removal  of 
radiographic  apparatus,  by  order  of  the  commander  of  a 
belligerent  force,  would  be  very  easy,  and  that  it  would  be 
possible  also  to  receive  messages  by  means  of  it  and  at 
the  same  time  to  prevent  their  being  sent. 

The  Turks  and  the  Persians  reserved  the  right  of  re- 
placing the  Red  Cross  by  the  Red  Crescent  and  the  Red 
Lion  (or  the  Red  Sun),  respectively;  and  their  appeal  for 
reciprocity  in  this  regard  was  accepted,  not  by  the  con- 
ference as  a  whole,  but  by  several  separate  delegations. 
Great  Britain  accepted  their  appeal  in  a  plenary  session  of 
the  conference,  and  Russia,  in  accepting  it  in  a  reunion 
of  the  commission,  recalled  the  fact  that  "during  the  war 
of  1877-1878  the  Red  Cross  and  the  Red  Crescent  acted 
together  in  protecting  the  humanitarian  interests  of  which 
they  are  the  symbols." 

2.   The  Personnel  of  Captured  Ships 
a.    The  Conference  of  i8gg 

The  articles  of  the  Geneva  Convention  have  to  do  with 
two  classes  of  persons  on  board  captured  ships;  namely, 
the  religious,  medical,  and  hospital  staff,  and  the  sick, 
wounded,  or  shipwrecked  soldiers  and  sailors. 

The  conference  decided  that  the  religious,  medical,  and 
hospital  staff  of  any  captured  ship  should  be  inviolable  and 
that  its  members  must  not  be  made  prisoners  of  war ;  that 


WARFARE   ON  THE   SEA  Iig 

on  leaving  the  captured  ship  they  may  take  with  them  their 
private  property,  including  their  scientific  instruments; 
that  this  staff  shall  continue  to  fulfill  its  functions  as  long 
as  it  is  necessary,  and  that  it  can  then  leave  the  ship  when 
the  commander  in  chief  considers  it  possible;  and  that 
the  belligerents  must  guarantee  to  the  staff  that  has  fallen 
into  their  hands  the  enjoyment  of  their  emoluments  intact. 

In  the  debate  on  this  article,  a  delegate  from  Japan 
asked  if  the  emoluments  referred  to  were  meant  to  be 
those  accorded  by  the  government  of  the  captured  or 
the  captor  ship,  and  argued  that  they  should  be  those  of 
the  captor.  But  a  delegate  from  France  replied  that  if 
this  view  prevailed,  emoluments  in  certain  cases  would 
be  nothing  at  all,  and  that  it  would  be  simpler  and  more 
just  to  assure  to  the  staff  its  accustomed  emoluments. 
Aji  Austrian  delegate  argued  that  it  would  cause  great 
inconvenience  to  restore  the  staff  to  liberty,  and  that  it 
should  be  kept  under  the  surveillance  of  the  commander 
in  chief;  but  the  principle  was  insisted  upon  that  it  should 
be  considered  inviolable,  and  its  members  not  held  as  pris- 
oners of  war,  but  should  be  permitted  to  leave  the  ship 
as  soon  as  possible.  The  commander  in  chief  was  to 
decide  when  this  time  had  arrived,  but  he  should  act 
wholly  under  the  idea  that  he  was  not  dealing  with  pris- 
oners of  war,  and  did  not  have  the  power  of  dealing  with 
them  capriciously.  Captain  Mahan's  suggestion,  that  "a 
time  should  be  fixed  after  which  the  staff  should  neces- 
sarily be  liberated,"  was  not  adopted. 

Sick,  wounded,  or  shipwrecked  soldiers  and  sailors, 
to  whatever  nation  they  belong,  must  be  protected  and 
cared  for  by  their  captors,  but  they  are  regarded  as  prison- 
ers of  war;   the  captor  must  decide,  according  to  circum- 


120  THE   TWO  HAGUE   CONFERENCES 

stances,  whether  it  is  best  to  keep  them,  or  to  send  them 
to  a  port  of  his  own  country,  to  a  neutral  port,  or  even  to 
one  of  their  own  ports ;  and  in  the  last  cited  case,  prisoners 
thus  restored  to  their  country  can  not  serve  again  during 
the  continuance  of  the  war,  unless  duly  "exchanged." 

In  making  these  rules  the  conference  refused  to  use 
the  term  "victims  of  maritime  war,"  and  accepted  that 
of  "sick,  wounded,  or  shipwrecked  soldiers  and  sailors." 
This  was  done  on  the  motion  of  delegates  from  Japan 
and  Turkey,  who  said  that  during  the  recent  Chino- Jap- 
anese and  Greco-Turkish  wars,  sick  and  wounded  sol- 
diers belonging  to  land  armies  were  captured  while  being 
transported  by  sea.  The  phrase  adopted  includes  all 
sick  or  wounded  soldiers  and  sailors  found  on  board 
captured  ships,  whether  their  sickness  or  wounds  were 
incurred  before  or  after  coming  on  board.  The  use  of 
the  word  "captor"  was  also  objected  to,  since  it  might 
exclude  the  sick  and  wounded  on  board  hospital  ships 
and  neutral  merchantmen  which  are  exempt  from  "cap- 
ture"; but  on  the  motion  of  Captain  Scheine,  of  Russia, 
it  was  decided  that  "capture"  in  such  cases  would  be  ac- 
complished by  a  mere  "visit,"  made  by  a  war  ship  to  them. 

As  to  the  status  of  "prisoner  of  war"  which  was  retained 
for  the  sick,  wounded,  or  shipwrecked,  the  objection  was 
made  that  it  is  a  useless  and  cruel  one.  But  the  reply 
was  made  and  accepted  that  the  fundamental  principle 
to  be  applied  is  that  "a  belligerent  has  in  his  power  hostile 
combatants;  it  matters  little  that  they  are  wounded,  sick, 
or  shipwrecked,  or  that  they  have  been  taken  on  board 
a  vessel  of  any  particular  kind.  They  must  be  treated 
humanely,  of  course,  —  this  is  also  a  fundamental  prin- 
ciple; but  they  are  the  prisoners  of  their  captor." 


WARFARE    ON   THE   SEA  121 

A  delegate  from  Siam  objected  to  the  proviso  that  the 
captor  may  send  such  prisoners  to  one  of  their  home  ports, 
saying  that  it  had  no  practical  use.  But  it  was  shown 
that  such  a  course  might  be  taken  when  there  was  no  other 
port  near,  or  when  the  prisoners  were  very  seriously  ill 
or  wounded.  Both  humanity  and  interest  would  dictate 
such  a  course;  for  the  captor  would  burden  neither  him- 
self nor  his  country  with  the  hopelessly  sick  or  wounded. 
The  Siamese  motion  that  this  clause  be  stricken  out  was 
accordingly  rejected.  A  Japanese  motion,  that  the  word 
"serve"  be  replaced  by  "take  up  arms  again,"  was  also 
rejected;  although  it  was  conceded  that  the  sick  and 
wounded  captured  by  the  enemy  and  restored  to  their 
country  could  only  serve  in  civil  offices,  ambulance  corps, 
etc.,  and  not  as  combatants,  unless  duly  exchanged. 

In  the  case  of  the  shipwrecked,  wounded,  or  sick  landed 
at  a  neutral  port,  it  was  provided  that  they  could  be  so 
landed  only  with  the  consent  of  the  neutral  state;  but 
that  once  landed  there,  they  must  be  guarded  by  the  neutral 
state  so  that  they  can  not  again  take  part  in  the  war.  This 
rule  led  to  an  animated  debate,  was  adopted  by  a  bare- 
majority  of  the  delegations,  and  was  rejected  by  a  number 
of  important  governments  who  signed  the  convention 
only  on  the  condition  that  this  article  be  inoperative  in  so 
far  as  they  were  concerned. 

The  first  part  of  the  rule  was  accepted  by  every  one.  A 
neutral  country  does  not  break  the  laws  of  neutrality  by 
receiving  such  guests;  but  they  can  not  be  forced  upon  it 
by  the  belligerents:  humanity  and  its  own  wishes  alone 
can  dictate  their  reception.  But  the  second  part  of  the 
rule,  that  the  neutral  nation,  once  receiving  them,  must 
prevent  their  taking  part  again  in  the  war,  was  strongly 


122  THE   TWO   HAGUE   CONFERENCES 

opposed.  The  opposition  argued  that  the  laws  of  war  on 
land  permitted  the  neutral  nation  to  send  sick  and  wounded 
soldiers  back  to  their  own  land ;  that  the  laws  of  war  on 
the  sea  permitted  belligerents  to  send  their  sick  and 
wounded  captives  back  to  their  own  land;  that  it  would 
be  an  infringement  on  the  rights  of  neutrals  to  compel 
them  to  bear  the  burden  of  guarding  belligerent  guests 
during  the  whole  course  of  the  war;  and,  finally,  that  an 
epidemic  of  disease  might  break  out  in  the  port  or  town 
of  their  detention,  in  which  case  at  least  the  neutral  state 
should  be  free  to  send  its  guests  home. 

The  supporters  of  the  rule  replied  to  these  arguments 
that  shipwrecked  sailors  were  not  so  harmless  as  wounded 
soldiers,  and  neutral  states  receiving  them  should  prevent 
their  reentry  into  the  war ;  that  there  is  a  great  difference 
between  one  of  the  belligerents  restoring  captives  to  their 
own  country  and  a  neutral  state  doing  the  same  thing, 
since  "the  neutral  is  less  competent  to  decide  on  their 
condition  than  is  the  belligerent";  that  the  burden  of 
guarding  sailors  would  be  far  less  than  that  of  guarding 
soldiers,  since  very  few  sailors  would  be  landed  in  a  neu- 
tral country  in  comparison  wi  h  the  large  number  of  sol- 
diers who  would  find  their  way  to  a  neutral  country  after  a 
land  battle;  and  that  the  expenses  incurred  by  a  neutral 
state  in  caring  for  and  guarding  the  belligerents  it  receives 
must  be  paid  by  the  state  to  which  they  belong.1  A  vote 
was  taken  on  the  rule,  after  this  prolonged  discussion,  and 
resulted  in  its  adoption  by  ten  delegations  against  nine.2 

1  This  last  provision  was  made  a  part  of  the  rule  as  adopted. 

2  It  is  to  be  noted  that  three  of  the  ten  delegations  voting  "aye"  signed 
the  convention  at  the  end  of  the  conference  only  on  the  condition  of  com- 
plete liberty  of  action  so  far  as  this  rule  was  concerned;  the  United  States, 
which  was  one  of  the  nine  delegations  voting  "no,"  also  signed  it  under  the 
same  condition. 


WARFARE    ON   THE   SEA 


123 


This  vote  in  its  favor  was  so  indecisive  that,  at  a  sub- 
sequent meeting,  it  was  decided  to  add  the  proviso  that 
the  rule  would  be  operative  on  neutral  countries  only 
"in  the  absence  of  a  contrary  arrangement  between  the 
neutral  state  and  the  belligerents."  This  proviso  was 
based  on  the  supposition  that  belligerents  would  be  so 
anxious  to  have  their  sick,  wounded,  and  shipwrecked 
received  by  neutral  states  that  they  would  make  arrange- 
ments for  their  return  to  their  own  homes  and  thus  relieve 
the  neutral  states  of  the  burden  of  guarding  them.  This 
modification  of  the  rule  induced  all  but  one  of  the  nine 
delegations  voting  "no"  to  accept  the  rule  and  sign  the 
convention.  The  other  one,  the  United  States,  signed 
the  convention,  but  excluded  this  rule;  and  Germany, 
Great  Britain,  and  Turkey  did  the  same.1 

The  United  States  naval  representative,  Captain  Mahan, 
believed  that  the  articles  as  adopted  by  the  special  com- 
mittee, the  subcommission,  the  commission,  and  the  con- 
ference omitted  an  important  topic,  that,  namely,  of  the 
rescue  of  belligerents  by  neutral  vessels  which  chanced  to 
be  present  on  the  arena  of  combat.  This  topic  was  sug- 
gested to  Captain  Mahan  by  the  case  of  the  rescue  of  the 
captain  and  men  of  the  "Alabama"  by  the  British  yacht 
"  Deerhound."  In  order  to  prevent  a  similar  escape  of  a 
commander  in  chief  and  other  important  officers  from 
the  hands  of  a  victorious  belligerent  through  the  inter- 
vention of  a  neutral  boat,  Captain  Mahan  proposed  in 
the  subcommission  that  men  rescued  by  neutral  vessels  of 
any  kind,  hospital  ships  or  others,  shall  not  be  considered 

1  It  was  arranged  in  1900  that  the  convention  could  be  signed  by  these 
four  countries,  and  that  where  this  rule  (Article  X)  should  appear,  there 
should  be  inserted  the  word  "Exclu,"  —  excluded. 


124  THE  TWO   HAGUE   CONFERENCES 

under  a  neutral  flag,  but  shall  be  surrendered  on  demand 
to  a  ship  of  war  of  either  belligerent;  in  case  no  such 
demand  be  made,  the  men  thus  rescued  are  not  to  serve 
for  the  rest  of  the  war,  unless  duly  exchanged,  and  the  gov- 
ernment of  the  neutral  rescuer  must  prevent  as- far  as  pos- 
sible such  persons  from  serving  until  discharged.  Captain 
Mahan  supported  his  proposition  before  the  special  com- 
mittee of  experts,1  in  a  two  hours'  session,  but  failed  to  se- 
cure its  adoption,  either  by  the  committee  or  the  commission. 
On  being  informed  that  a  further  attempt  to  secure  its  adop- 
tion would  probably  imperil  the  unanimity  with  which  the 
other  articles  had  been  received,  the  United  States  delega- 
tion instructed  Captain  Mahan  to  withdraw  his  proposed 
additions;  this  he  did  by  letter  to  the  committee,  and  with 
a  statement  to  the  conference  that  the  delegation's  reason 
for  doing  so  was  "not  because  of  any  change  of  opinion 
as  to  the  necessity  of  the  proposed  additions,  but  in  order 
to  facilitate  the  conclusion  of  the  labors  of  the  conference." 

b.    The  Conference  of  igoy 

The  conference  did  not  modify  the  rules  of  1899  as  far 
as  the  religious,  medical  and  hospital  staff  of  captured 
ships  was  concerned;  but  it  did  amplify  the  rules  con- 
cerning the  sick,  wounded,  or  shipwrecked  soldiers  and 
sailors  of  such  ships.  It  provided  that  any  belligerent 
war  ship  may  demand  the  surrender  of  the  sick,  wounded, 
or  shipwrecked  on  board  military  hospital  ships,  the  hos- 
pital ships  of  charitable  societies  or  individuals,  and 
merchant  ships,  yachts,  etc.,  whatever  may  be  the  nation- 
ality of  such  vessels. 

1  This  committee  was  composed  of  one  member  each  from  Great  Britain, 
Germany,  Russia,  and  France. 


WARFARE    ON   THE    SEA 


I25 


When  this  rule  was  debated  in  the  subcommission,  it 
was  admitted  that  a  belligerent  war  ship,  exercising  its 
right  of  visit  to  such  ships  and  finding  disabled  men  on 
board,  would  often  find  it  to  its  own  advantage  not  to 
burden  itself  with  them,  but  to  leave  them  where  they 
were  found.  But  it  was  argued  that,  if  it  should  appear 
that  such  disabled  men,  and  especially  those  rescued 
from  drowning,  would  still  be  able  to  render  important 
services  to  their  country,  they  should  not  be  permitted 
to  escape,  but  might  be  demanded  by  the  belligerent  war 
ship  and  must  be  surrendered  to  it.  This  belligerent 
right  was  conceded  on  the  express  ground  that  both  the 
Conventions  of  1899  and  1907  regard  such  men  as  pris- 
oners of  war,  since,  in  spite  of  their  physical  condition, 
they  are  combatants  of  a  belligerent  nation  and  have 
fallen  into  the  power  of  the  enemy. 

It  was  also  urged  that  to  compel  a  neutral  ship  to  sur- 
render the  wounded,  whom  it  had  received  out  of  charity, 
would  be  an  act  of  inhumanity.  But  to  this  objection 
the  reply  was  made  that  international  law  would  permit 
not  only  the  seizure  of  hostile  combatants  found  on 
board  a  neutral  ship,  but  the  seizure  and  confiscation 
of  the  ship  itself,  for  having  rendered  a  non-neutral  serv- 
ice; and,  further,  that  if  men  rescued  from  drowning, 
for  example,  could  escape  capture  solely  because  they  had 
found  refuge  on  board  a  neutral  ship,  the  belligerent 
powers  would  eliminate  the  charitable  activity  of  neutrals 
from  the  moment  that  such  activity  might  result  in  an 
irreparable  injury  to  themselves,  and  that  thus  humanity 
would  be  an  even  greater  loser  in  the  absence  of  the  rule. 

It  should  be  noted  that  the  rule  as  applied  to  neutral 
merchant  ships  gives  to  belligerent  cruisers  only  the  right 


126      THE  TWO  HAGUE  CONFERENCES 

of  demanding  the  surrender  of  the  refugees  on  board  of 
them,  and  not  the  right  of  capturing  them  or  even  of 
turning  them  from  their  route  or  imposing  upon  them  a 
fixed  itinerary. 

The  French  delegation,  influenced  by  an  incident  in 
the  recent  Russo-Japanese  War,  proposed  that  the  ship- 
wrecked, wounded,  or  invalids  received  on  board  a  neutral 
war  ship  should  not  be  surrendered  to  their  enemy,  but 
should  be  kept  under  guard.  This  proposition  was 
adopted  by  the  conference,  on  the  ground  that  such  refu- 
gees should  receive  treatment  analogous  to  that  accorded 
to  combatants  who  take  refuge  in  neutral  territority. 

One  other  rule,  adopted  from  the  Geneva  Convention 
as  applied  on  land,  was  that  after  each  combat  the  two 
belligerents,  in  so  far  as  military  interests  permit,  shall 
take  measures  for  rescuing  the  shipwrecked,  wounded,  and 
invalids,  and  for  protecting  them,  as  well  as  the  dead, 
against  pillage  and  ill  treatment;  they  shall  also  take  care 
that  the  burial,  immersion,  or  incineration  of  the  dead  be 
preceded  by  an  attentive  examination  of  the  corpses.  This 
last  reference  to  the  burial  and  incineration  of  the  victims 
of  maritime  warfare  was  intended  to  cover  the  case  of  a 
battle  fought  near  the  coast  on  which  the  bodies  of  many 
victims  would  be  found. 

C.    THE  PRIVATE  PROPERTY  OF  BELLIGERENTS 

a.   The  Conference  of  1899 

The  Russian  programme  contained  no  reference  to  the 
exemption  of  private  property  from  capture  in  maritime 
warfare ;  but  the  United  States  government  instructed  its 
delegation  to  introduce  the  subject  before  the  conference 


WARFARE    ON   THE    SEA 


127 


at  the  first  favorable  opportunity.  An  attempt  was 
made  in  an  informal  meeting  of  the  first  delegates  on  the 
day  after  the  opening  of  the  conference  to  secure  general 
consent  to  its  introduction.  But  this  attempt  failed,  owing 
to  objections  strongly  urged  by  the  representatives  of 
Russia,  Great  Britain,  and  France.  The  chief  objection 
urged  was  that,  unless  the  programme  were  strictly  ad- 
hered to,  and  every  topic  not  included  within  it  were 
rigidly  excluded,  the  conference  would  find  itself  over- 
whelmed by  the  flood  of  topics  pouring  in  upon  it  from 
outside  sources  and  would  end  in  confusion,  discord,  and 
failure. 

A  good  deal  of  private  persuasion  was  required  to  con- 
vince most  of  the  first  delegates  that  an  exception  to  this 
wise  rule  should  be  made  in  favor  of  the  topic  which  the 
United  States  delegation  had  so  much  at  heart.  Finally 
when,  in  July,  the  II  Commission  adopted  the  rule  that 
private  property  should  not  be  confiscated  in  warfare  on 
land,  Ambassador  White,  of  the  United  States,  believed 
that  the  best  opportunity  had  arrived,  and  he  prevailed 
on  the  commission's  president,  Professor  de  Martens,  of 
Russia,  to  read  a  letter  on  the  subject  which  he  had  written 
to  the  commission.  Professor  de  Martens  said  that  he 
was  happy  to  state  that  "as  early  as  1823  Russia  had  ex- 
pressed its  sympathy  with  the  American  idea,  which  has 
a  right  to  the  benevolent  interest  of  the  whole  world." 
"But,"  he  continued,  "will  it  be  possible  to  discuss  here 
this  important  question?  If  this  inviolability  be  admitted, 
the  maritime  states  will  have  to  change  radically  their 
plans  and  projects.  The  question  is  so  complex  that  it  will 
be  very  difficult  to  find,  under  present  circumstances,  a 
solution  acceptable  by  every  one ;  and  a  decision  will  have 


128  THE   TWO    HAGUE    CONFERENCES 

value  only  if  it  be  taken  unanimously."  He  then  proposed 
that  the  consideration  of  the  question  be  referred  to  a 
later  conference,  "better  prepared  to  answer  it  and  to 
elaborate  a  plan  which  can  secure  universal  consent." 
"If  this  commission  will  adopt  this  proposition,"  he  con- 
cluded, "it  will  both  show  its  prudence  and  at  the  same 
time  will  yield  homage  to  the  generous  initiative  of  the 
United  States." 

Sir  Julian  Pauncefote,  of  Great  Britain,  opposed  the 
proposition  of  Professor  de  Martens,  arguing  that,  the 
topic  not  being  on  the  programme,  it  should  not  be  raised 
at  all.  Captain  Scheine,  of  Russia,  shared  Pauncefote's 
opinion,  and  said  that,  since  his  instructions  had  nothing 
to  do  with  the  laws  and  customs  of  maritime  war,  he  would 
abstain  from  participating  in  any  discussion  of  the  ques- 
tion raised. 

Ambassador  White,  on  the  other  hand,  argued  that  the 
conference  was  quite  as  competent  for  the  consideration 
of  this  question  as  for  that  of  many  others  which  had 
been  settled  by  it.  But  he  admitted  that  the  time  was  not 
favorable  for  a  proper  discussion  of  it,  although  it  was  of 
great  importance  to  all  the  powers  represented;  and  he 
therefore  proposed  that  it  be  submitted  to  the  whole  con- 
ference in  plenary  session,  which  would  decide  whether  it 
would  discuss  it  or  confide  its  consideration  to  another 
conference.  "And,"  he  said  in  conclusion,  "if  the  con- 
ference does  not  desire  to  discuss  the  question,  the  United 
States  delegation  will  yield  to  the  reference  of  it  to  another 
conference.  We  do  not  want  to  hurl  a  brand  of  discord 
into  our  meetings  and  thus  injure  results  secured  on  other 
very  important  questions ;  we  ask  only  that  our  proposition, 
which  has  been  made  in  entire  good  faith,  be  submitted 


WARFARE    ON    THE   SEA 


129 


to  the  conference  in  plenary  session;  there,  we  will  not 
oppose  the  reference  of  the  question  to  a  later  con- 
ference." 

M.  Rahusen,  of  the  Netherlands,  said  that  he  agreed 
with  Ambassador  White  as  far  as  the  question  of  com- 
petence was  concerned:  "The  conference  has  considered 
the  question  of  private  property  on  land ;  why  not  as  well 
examine  the  question  of  private  property  on  the  sea  ?  And, 
moreover,  for  what  reason  should  one  question  be  treated 
differently  from  the  other?"  As  an  immediate  solution  of 
the  question,  he  suggested  that  the  governments  favorable 
to  the  principle  of  inviolability  should  secure  it  by  making 
separate  treaties  with  each  other. 

After  a  further  discussion  as  to  the  competence  of  the 
conference  to  deal  with  the  question  in  any  way,  the 
commission  resolved  by  unanimous  vote,  Great  Britain, 
France  and  Russia  refusing  to  vote  at  all,  that  the  ques- 
tion should  be  referred  to  a  later  conference,  and  that  this 
resolution  should  be  submitted  to  the  existing  conference 
for  its  approval  in  plenary  session. 

When  this  resolution  was  reported  to  the  conference  on 
the  5th  of  July  (the  same  day  on  which  the  commission  had 
adopted  it),  Ambassador  White  made  a  noteworthy  ad- 
dress in  support  of  the  principle  of  the  inviolability  of 
private  property,  with  the  exception  of  contraband  of  war, 
in  time  of  naval  warfare,  —  a  principle  which  "the  govern- 
ment of  the  United  States,  during  more  than  a  century, 
has  seriously  endeavored  to  have  adopted"  in  international 
law.  After  admitting  that,  because  of  the  doubt  as  to  its 
competence  to  deal  with  the  question,  the  existing  con- 
ference did  not  furnish  a  suitable  opportunity  for  its 
discussion,  Dr.  White  continued: 


13° 


THE   TWO   HAGUE   CONFERENCES 


"But,  obliged  to  recognize  this  fact  with  a  sincere  regret,  we  believe 
that  our  instructions  impose  upon  us  the  duty  of  doing  all  that  is 
within  our  power  to  bring  this  great  question,  so  important  for  us  all, 
prominently  before  the  minds  of  the  nations  represented  here. 

"We  have  not  lost  the  hope  of  seeing  this  question  brought  to  a 
favorable  solution.  Nothing  is  more  evident  than  the  fact  that,  more 
and  more,  eminent  thinkers  in  the  domain  of  international  law  are 
inclining  towards  the  doctrine  which  we  defend.  More  and  more, 
also,  it  is  becoming  plain  that  the  adoption  of  this  principle  is  in  the 
interests  of  every  nation. 

"It  must  be  acknowledged  that  any  agreement  to  abstain  from  pri- 
vateering is  idle,  if  it  does  not  at  the  same  time  recognize  the  inviola- 
bility of  all  private  property  on  the  sea,  with  the  exception  of  contra- 
band of  war.  The  two  systems  of  injuring  the  enemy  during  war  are 
logically  united.  If  abstention  from  the  use  of  one  system  is  agreed 
on,  a  necessary  guarantee  of  that  agreement  is  that  the  other  will  not 
be  resorted  to. 

"It  is  becoming  more  and  more  evident  that  the  eminent  Count 
Nesselrode  expressed  not  only  his  profound  conviction,  but  also  a 
great  truth,  in  affirming  that  this  declaration,  which  the  United  States 
supported  in  his  time  as  it  does  now,  will  be  a  crown  of  glory  to  modern 
diplomacy. 

"I  am  not  ignorant  that  an  argument  has  been  advanced  which, 
at  first  sight,  may  seem  to  have  considerable  force,  the  argument  that 
even  if  we  should  guarantee  the  inviolability  of  private  property,  with 
the  exception  of  contraband  of  war,  a  new  and  very  knotty  question 
would  immediately  arise,  the  definition,  namely,  of  what  should  be 
understood  to-day  by  contraband  of  war. 

"...  But  I  surely  need  not  say  to  an  audience  as  intelligent  and 
enlightened  as  this,  that  the  difficulties  which  may  beset  the  taking  of 
a  second  step  in  an  affair  of  this  kind  do  not  constitute  a  reason  for 
renouncing  the  first  step.  The  wiser  course  would  seem  to  be  to  take 
the  first  step  and,  having  taken  it,  to  consider  what  should  be  the 
second. 

"...  It  must  be  admitted  that  more  harm  than  good  has  been 
done  by  some  of  the  arguments  which  have  likened  private  property 
on  the  sea  to  private  property  on  the  land  in  time  of  war.  But  that 
proves  nothing  against  the  crushing  mass  of  arguments  in  favor  of  our 


WARFARE   ON  THE   SEA 


131 


proposition.  If  the  question  were  under  discussion  at  the  present 
moment,  if  there  were  not  other  subjects  on  which  the  attention  of  the 
world  is  centered,  and  which  absorb  our  activities,  I  should  like  to 
direct  your  thoughts  to  the  immense  losses  which  would  be  suffered  by 
the  nations  in  case  of  a  declaration  of  war.  I  would  cite  as  example 
the  losses  resulting  from  the  denationalization  of  merchant  vessels, 
without  a  proportionate  effect  upon  the  decision  of  the  questions  in 
dispute. 

"A  rapid  glance  at  the  history  of  the  Confederate  cruisers  during 
the  American  Civil  War  shows  how  serious  would  be  the  loss  of  the 
power  directly  interested.  Three  Confederate  cruisers  alone  played 
a  part  of  considerable  importance;  their  prizes  were  limited  to  169 
ships;  the  rate  of  insurance  between  the  United  States  and  Great 
Britain  increased  from  30  to  120  shillings  per  ton;  nearly  one  half 
million  tons  of  American  merchant  shipping  were  placed  under  the 
English  flag;  the  final  result  was  the  almost  entire  disappearance 
of  the  merchant  marine  of  the  United  States.  If  such  a  result  was 
secured  by  the  operations  of  three  small  ships,  far  from  excellent  and 
badly  equipped,  what  would  happen  with  the  means  which  to-day 
are  at  the  disposal  of  the  large  nations? 

"On  the  other  hand,  all  the  world  knows  that  this  use  of  privateers 
had  not  the  slightest  effect  in  terminating  or  even  shortening  the  war. 
If  those  losses  had  been  ten  times  greater,  they  would  have  contributed 
nothing  to  the  abridgment  of  hostilities.  There  would  have  been 
simply  the  destruction  of  a  large  quantity  of  property  belonging  to  the 
most  laborious  and  the  most  meritorious  part  of  our  population,  — 
that  of  our  merchants  who  had  placed  on  board  their  ships  the  wealth 
which  they  had  earned.  The  most  evident  result  was  to  leave  a  cause 
of  resentment  between  two  great  nations,  —  a  resentment  which  a 
famous  arbitration  succeeded  in  removing. 

"...  Gentlemen,  the  American  delegation  does  not  defend  the 
particular  interests  of  its  own  country.  We  know  very  well  that, 
under  present  conditions,  if  war  were  declared  between  two  or  more 
European  powers,  there  would  be  immediately  an  enormous  transfer 
of  cargoes  and  ships  to  neutral  countries,  and  that  the  United  States, 
as  one  of  them,  would  reap  from  it  enormous  advantages.  But  my 
government  does  not  desire  to  profit  in  ways  of  that  kind. 

"May  I  not  say  that  a  characteristic  trait  of  my  fellow-citizens  has 


132  THE  TWO   HAGUE   CONFERENCES 

been  greatly  misunderstood  in  Europe?  Europeans  generally  sup- 
pose that  the  people  of  the  United  States  is  a  people  eminently  prac- 
tical. That  is  true;  but  it  is  only  one  half  of  the  truth.  For  the 
people  of  the  United  States  are  not  only  practical;  they  are  still 
more  devoted  to  the  ideal.  There  is  no  greater  error,  when  one 
regards  the  United  States,  or  when  one  deals  with  it,  than  to  suppose 
that  its  citizens  are  guided  solely  by  material  interests.  Our  own 
Civil  War  shows  that  the  ideal  of  maintaining  the  Union  of  the  States 
led  us  into  a  conflict  which  cost  the  sacrifice  of  nearly  one  million  men 
and  of  nearly  ten  thousand  millions  of  dollars. 

"I  say  this  not  from  vanity,  but  to  show  that  Americans  are  not 
merely  practical  people,  but  are  idealists  also;  and  they  are  such  as 
regards  the  question  of  the  inviolability  of  private  property  on  the  sea. 
This  is  not  merely  a  question  of  interest  for  us;  it  is  a  question  of 
right,  of  justice,  of  progress  for  the  whole  world." 

Dr.  White  then  made  an  appeal  for  the  consideration  of 
"this  grave  question"  by  all  the  members  of  the  existing 
conference,  and  for  its  specific  reference  to  a  future  con- 
ference, declaring,  in  conclusion,  that  "the  solution  of  this 
question,  in  the  way  which  I  have  indicated,  will  confer 
honor  upon  all  those  who  shall  have  participated  in  it, 
and  will  be  to  the  enduring  advantage  of  all  nations 
interested." 

Count  Nigra,  of  Italy,  supported  the  proposition  to  refer 
the  subject  to  another  conference,  and  said  that  the  Italian 
government  has  not  restricted  itself  to  the  protestation  of 
respect  for  private  property  on  the  sea,  but  has  sanctioned 
the  principle  in  its  laws.  He  recalled,  in  particular,  an 
article  of  the  commercial  treaty  concluded  between  Italy 
and  the  United  States,  which  stipulates,  under  the  proviso 
of  reciprocity,  a  recognition  of  the  inviolability  of  such 
property. 

President  de  Staal  then  consulted  the  conference  on  the 
adoption  of  the  proposed  resolution ;   thereupon  Sir  Julian 


WARFARE   ON  THE   SEA  133 

Pauncefote  explained  that  in  default  of  instructions  from 
his  government  in  regard  to  the  matter  he  would  be  obliged 
to  abstain  from  voting.  The  resolution  was  then  voted  by- 
acclamation,  and  was  embodied  as  one  of  the  six  desires 
(vceux)  of  the  conference  under  the  following  form:  "5th. 
The  conference  expresses  the  desire  that  the  proposition 
tending  to  declare  the  inviolability  of  private  property  in 
warfare  upon  the  sea  be  referred  for  consideration  to  a 
later  conference." 

b.    The  Conference  of  1907 

1.    Merchant  Ships  and  Cargoes 

Although  the  United  States  delegation  had  failed  in  the 
first  conference  to  have  the  subject  of  the  exemption  of 
private  property  in  maritime  war  discussed,  it  had  suc- 
ceeded in  directing  attention  to  it  in  an  impressive  manner 
and  in  having  it  included,  so  far  as  the  conference  could 
do  so,  in  the  programme  of  topics  for  the  subsequent  con- 
ference. The  United  States  Congress  in  April,  1904, 
passed  a  joint  resolution  that  the  president  should  endeavor 
to  induce  the  chief  maritime  powers  to  recognize  the  prin- 
ciple contended  for  in  the  permanent  law  of  civilized  na- 
tions; and  President  Roosevelt,  through  Secretary  Hay's 
circular  letter  to  the  powers,  dated  October  31,  1904, 
inviting  them  to  meet  in  another  conference,  emphasized 
the  importance  of  the  question  and  the  need  of  having  it 
considered  in  the  proposed  conference.  Russia,  too,  in 
its  official  programme  of  March  24  (April  6),  1906,  men- 
tioned it  specifically  among  the  subjects  to  be  discussed. 
There  could  be,  then,  no  question  this  time  as  to  the  com- 
petence of  the  conference  to  deal  with  it;    and  it  was 


134  THE  TWO   HAGUE   CONFERENCES 

referred   specifically  to  the  IV  Commission  to   be    con- 
sidered. 

At  the  first  meeting  of  this  commission,  June  24,  Am- 
bassador Choate  presented  the  American  proposition,  as 
follows : 

"The  private  property  of  all  the  citizens  of  the  signatory  powers, 
with  the  exception  of  contraband  of  war,  shall  be  exempt  on  the  sea 
from  capture  or  seizure  by  either  the  armed  vessels  or  the  military 
forces  of  the  said  powers.  Nevertheless,  this  provision  does  not  at 
all  imply  the  inviolability  of  vessels  which  should  try  to  enter  a  port 
blockaded  by  the  naval  forces  of  the  said  powers,  nor  the  inviolability 
of  the  cargoes  of  the  said  ships." 

Four  days  later,  this  proposition  came  up  for  discussion 
and  was  approved  by  the  representatives  of  Austria,  Bra- 
zil, and  Italy,  who  claimed  for  their  countries  a  long  and 
practical  support  of  the  principle  embodied  in  it.  On 
the  other  hand,  M.  Nelidow,  speaking  simply  as  a  mem- 
ber, and  not  as  the  president,  of  the  conference,  said  that 
such  immunity  of  private  property  might  promote  war 
instead  of  peace,  because  it  would  destroy  the  financial 
arguments  of  maritime  and  commercial  communities  for 
the  maintenance  of  peace;  but  he  was  careful  to  state 
that  this  was  only  a  personal  opinion  and  he  would  not  at 
all  say  that  Russia  would  oppose  the  proposition. 

Ambassador  Choate  then  made  an  eloquent  speech,  in 
which  he  traced  the  efforts  made  by  the  United  States  and 
its  diplomatists,  from  the  time  of  the  treaty  with  Great 
Britain  in  1783  down  to  the  first  Peace  Conference,  to 
have  the  principle  embodied  in  his  proposition  accepted 
as  international  law;  he  mentioned  the  support  given  it 
by  various  European  countries;  cited  English  and  Rus- 
sian writers,  such  as  Lord  Palmerston,  Richard  Cobden, 


WARFARE    ON   THE   SEA  1 35 

John  Stuart  Mill,  Professor  de  Martens,  Count  Nessel- 
rode,  and  Prince  Gortschakof,  who  had  admitted  its 
justice ;  and  showed  that  technical  progress  makes  of  pri- 
vateering a  kind  of  anachronism,  that  the  game  has  be- 
come not  worth  the  candle,  and  that  the  tendencies  of 
modern  civilization  are  all  in  favor  of  the  enforcement  of 
this  American  idea.1 

At  the  next  meeting  of  the  commission,  Baron  von 
Bieberstein,  of  Germany,  spoke  of  the  traditional  sym- 
pathy in  his  country  for  the  American  attitude  towards 
private  property  on  the  sea,  but  said  that  because  of  the 
uncertainty  as  to  the  exact  meaning  of  the  terms  "contra- 
band" and  "blockade,"  which  are  stated  as  exceptions 
in  the  American  proposition,  he  could  not  assent  to  that 
proposition  until  the  uncertainty  as  to  the  meaning  of 
the  two  terms  mentioned  was  removed. 

The  delegates  of  Great  Britain,  Portugal,  Russia,  and 
France  coincided  with  the  German  view  of  the  question, 
and  the  French  delegate  proposed  as  a  substitute  for  Mr. 
Choate's  proposition  that  the  states  which  may  exercise 
the  right  of  capture  shall  abolish  the  distribution  of  the 
booty  among  the  crew  of  the  captor  ship,  and  shall  take 
the  necessary  measures  for  preventing  the  losses  caused  by 
the  exercise  of  the  right  of  capture  from  resting  entirely  on 
the  individuals  whose  goods  have  been  captured. 

Norway,  Sweden,  Austria-Hungary,  and  Brazil  supported 
the  American  proposition,  but  Brazil  proposed  that,  in 
case  of  its  non-adoption,  when  the  most  imperious  exigen- 

1  The  eminent  rapporteur  of  the  commission,  Professor  Renault,  of 
France,  in  commenting  upon  this  remarkable  address,  said  that  "  nothing 
has  been  omitted  which  is  calculated  to  strike  and  hold  the  attention." 
Like  Mr.  Choate's  other  addresses,  it  was  spoken  in  English,  and  then  trans- 
lated into  French  and  printed  copies  supplied  to  all  the  delegates. 


136  THE   TWO   HAGUE   CONFERENCES 

cies  of  war  compelled  the  exercise  of  the  right  of  capture, 
the  individual  from  whom  the  goods  were  seized  should  be 
given  the  right  of  just  indemnity. 

The  Netherlands  proposed  that  in  order  to  prevent 
merchant  ships  once  captured  and  released  from  being 
converted  into  ships  of  war,  they  should  be  furnished  with 
passports  by  their  own  governments  in  which  the  express 
promise  should  be  made  that  they  would  not,  under  any 
circumstances,  be  used  as  war  ships  so  long  as  the  war 
lasted;  and  that  only  when  furnished  with  such  passports 
should  merchant  ships  and  their  cargoes  be  exempt  from 
capture. 

M.  Perez  Triana,  of  Colombia,  opposed  the  American 
proposition,  on  the  ground  that  privateering  is  the  natural 
weapon  of  warfare  for  a  weaker  nation,  without  war  ships, 
to  use  against  a  stronger;  and  he  replied  to  Mr.  Choate's 
statement  that  the  capture  of  private  property  on  the  sea  is 
a  relic  of  piracy,  by  saying  that  war  itself  is  only  organized 
murder,  and  that  when  war  commences  privateering  is 
justifiable  also.  M.  Triana  also  made  a  veiled  attack 
upon  the  United  States'  recent  policy  of  building  up  a 
large  navy  while  its  merchant  marine  has  been  dwindling, 
and  contrasted  it  with  the  policy  of  a  small  navy  and  a 
large  merchant  marine  which  marked  the  "good  old  days 
when  the  United  States  was  the  disinterested  defender  of 
the  principles  of  justice  and  humanity." 

At  the  next  session  of  the  commission,  M.  Beernaert,  of 
Belgium,  made  a  powerful  appeal  for  the  adoption  of  a 
compromise  between  the  extremes  of  the  entire  abolition 
and  the  unrestricted  use  of  the  capture  of  private 
property  on  the  sea ;  and  he  proposed  as  this  compromise 
that  vessels  exclusively  devoted  to  the  fishing  industry,  or 


WARFARE    ON   THE    SEA 


m 


to  scientific  and  hospital  purposes,  should  be  exempt 
from  capture;  that  merchant  ships  and  cargoes  could  be 
seized,  but  should  be  restored  or  compensated  for  at  the 
end  of  the  war;  and  that  the  officers  and  crews  of  such  cap- 
tured ships  should  not  be  retained  as  prisoners  of  war,  but 
should  be  disembarked  as  soon  as  possible  and  set  at 
liberty  on  condition  that  they  should  take  no  part  in  the 
war. 

The  second  delegate  from  China  (Hon.  John  W.  Foster, 
a  citizen  of  the  United  States)  supported  the  American 
proposition  and,  asserting  that  in  our  times  peace  is  the 
normal  state  of  nations  and  war  the  abnormal,  he  made 
an  eloquent  plea  for  every  possible  measure  which  should 
make  the  high  seas  free  to  the  peaceful  commerce  of  the 
world,  unharassed  by  fear  of  the  brutalities  of  war. 

The  first  delegate  from  Spain  announced  that  he  would 
oppose  the  American  proposition,  but  that  his  country 
would  hereafter  accept  in  its  entirety  the  Declaration  of 
Paris  of  1856  *  whose  principles  it  had  observed  in  prac- 
tice, notably  during  its  last  war. 

After  the  discussion  of  the  question  had  been  carried 
through  four  sessions  of  the  commission,  Mr.  Choate 
demanded  that  a  vote  should  be  taken,  and  that  the  Ameri- 
can proposition,  having  been  presented  before  any  of  the 
various  other  propositions,  should  be  voted  on  first.  This 
was  done,  on  the  17th  of  July,  and  resulted  in  twenty-one 


1  The  Declaration  of  Paris  of  1856  prohibited  privateering  in  time  of  war; 
but,  as  Ambassador  Choate  explained  in  the  course  of  the  debate  in  the  Con- 
ference of  1907,  the  United  States  had  never  adhered  to  that  declaration 
because  it  had  not  also  prohibited  the  capture  of  private  property  by  war 
ships;  and  because,  as  Ambassador  White  had  argued  in  1899,  privateering 
and  the  capture  of  private  property  by  wa"r  ships  should  be  abolished  to- 
gether. 


138  THE   TWO   HAGUE   CONFERENCES 

votes  in  favor  of  the  proposition,  eleven  against  it,  one  ab- 
stention, and  eleven  absent.1 

When  this  vote  was  announced,  the  Belgian  delegate 
moved  that  a  vote  be  taken  on  the  substitute  proposition 
presented  by  him.  Ambassador  Choate  objected  to  this, 
saying  that  since  the  commission  had  already  decided  by 
a  strong  majority  in  favor  of  the  American  proposition, 
he  did  not  think  it  necessary  to  discuss  taking  a  half-loaf 
when  the  whole  loaf  had  already  been  gained.  This  state- 
ment led  to  a  discussion  of  the  significance  of  the  vote  just 
taken,  and  the  opponents  of  the  American  proposition 
argued  that  although  a  decided  majority  of  the  votes  cast 
had  been  in  its  favor,  still  there  were  absent  eleven  dele- 
gations, one  of  whom,  Argentina's,  had  expressed  itself 
as  opposed  to  the  proposition,  and  all  might  be ;  and  that 
the  delegations  voting  aye  represented  804  millions  of 
people,  "400  millions  of  whom  were  Chinese,"  while 
those  voting  no  represented  729  millions.  This  last  state- 
ment brought  two  representatives  of  China  to  their  feet  to 
demand  an  explanation  of  the  implication  that  the  Chinese 
should  not  be  counted. 

At  the  end  of  a  rather  animated  discussion  it  was  decided 
that  the  other  propositions  should  be  voted  upon  so  as  to 
see  if  greater  unanimity  could  be  secured  than  in  the  case 
of  the  American.  Accordingly,  at  the  next  meeting  the 
Brazilian   proposition   was  voted  on  without   discussion, 

1  The  ayes  were:  United  States,  Germany,  Austria-Hungary,  Italy,  Den- 
mark, Norway,  Sweden,  Greece,  Belgium,  Holland,  Switzerland,  Bulgaria, 
Roumania,  China,  Persia,  Siam,  Turkey,  Brazil,  Cuba,  Ecuador,  and  Haiti; 
the  noes  were  Great  Britain,  France,  Russia,  Japan,  Spain,  Portugal,  Mon- 
tenegro, Mexico,  Colombia,  Panama,  and  Salvador;  Chili  abstained  from 
voting;  and  Luxemburg,  Servia,  Argentina,  Bolivia,  Dominican  Republic, 
Guatemala,  Nicaragua,  Paraguay,  Peru,  Uruguay,  and  Venezuela  were  absent. 


WARFARE    ON   THE    SEA  139 

and  resulted  in  thirteen  ayes,  twelve  noes,  and  nineteen 
abstentions  and  absences.1  The  Brazilian  proposition 
was  thereupon  withdrawn  and  the  Belgian  taken  up. 
Great  Britain's  delegation  opposed  this  proposition  on  the 
ground  that  the  advantages  offered  by  it  to  commerce 
would  not  compensate  for  the  difficulties  it  would  entail 
upon  belligerents ;  and  France's  delegation  opposed  it  be- 
cause it  would  be  unjust  to  those  powers  which  do  not 
possess  a  large  number  of  widely  separated  ports  to  which 
to  conduct  their  prizes.  A  vote  was  then  taken,  with 
the  result  that  fourteen  powers  voted  for  the  proposition, 
nine  against,  and  seven  abstained.1  The  Belgian  propo- 
sition was  thereupon  withdrawn,  and  Professor  de  Mar- 
tens, of  Russia,  proposed  that  a  desire  (vceu)  be  expressed 
by  the  conference  that  belligerent  powers,  following  the 
precedent  set  in  the  Crimean  and  the  Austro- Prussian 
Wars,  should  at  the  commencement  of  any  war  declare 
whether  they  would  or  would  not  renounce  the  practice 
of  capture.  But  in  the  face  of  opposition  this  proposition 
too  was  withdrawn  and  without  formal  vote. 

The  further  discussion  of  the  question  was  now  post- 
poned for  three  weeks  until  the  delegations  could  secure 
instructions  in  regard  to  the  French  proposition.  When 
this  was  voted  upon,  August  7,  the  first  clause  providing 
for  the  abolition  by  national  legislation  of  the  distribu- 
tion of  the  prize  received  sixteen  ayes,  four  noes,  and  four- 
teen abstentions.  The  second  clause,  changed  by  an 
Austrian  amendment  which  was  accepted  by  the  French 
delegation  and  providing  that  the  states  should  seek  the 
means  of  preventing  losses  due  to  capture  from  falling 

1  The  United  States  delegation  voted  in  the  negative. 


140  THE   TWO   HAGUE   CONFERENCES 

entirely  upon  the  individual  owners,  received  seven  ayes, 
thirteen  noes,  and  fourteen  abstentions. 

The  United  States  delegation  voted  against  both  clauses 
of  the  French  proposition,  and  Mr.  Choate  explained  that 
although  the  delegation  sympathized  with  every  step 
towards  the  realization  of  the  immunity  of  private  prop- 
erty on  the  sea,  its  negative  vote  was  due  to  the  following 
considerations:  First,  the  vote  for  its  own  proposition 
showed  that  it  expressed  very  well  the  opinion  of  the  ma- 
jority of  the  conference;  second,  the  United  States  had 
recently  suppressed  for  itself  the  distribution  of  prizes; 
third,  the  second  clause  of  the  French  proposition  had  to 
do  with  a  question  which  was  purely  national  and  which 
should  be  answered  by  each  country  individually;  and, 
fourth,  the  delegation  believed  that  the  French  answer  to 
this  question  would  do  nothing  for  the  protection  of  com- 
merce, but  would  tend  rather  to  increase  than  to  diminish 
the  chances  of  capture  by  making  it  known  that  the  loss 
would  ultimately  be  sustained  by  the  state,  while  it  would 
assuredly  give  rise  to  many  and  varied  claims  during  each 
war  which  would  have  to  be  adjusted  at  its  conclusion  by 
diplomacy  or  by  the  national  courts. 

The  facts  of  this  long  discussion  were  presented  by  the 
commission  to  the  conference  at  its  plenary  session  of  Sep- 
tember 27.  But  neither  in  the  commission  nor  in  the 
conference  was  any  further  attempt  made  to  reach  a  defi- 
nite conclusion  on  the  question.  This  disposition  of  the 
subject  has  since  been  explained  by  Mr.  Choate  as  follows : 
"  It  was  not  possible,  however,  in  the  face  of  great  com- 
mercial nations  that  opposed  it,  nations  likely  at  any  time 
to  be  engaged  in  war,  to  press  it  further.  We  were  in- 
structed never  to  press  anything  to  the  point  of  irritation, 


WARFARE    ON   THE    SEA  14 1 

but  if  we  found  that  it  was  not  possible  to  carry  a  thing 
by  general  consent,  then  we  were  to  carry  it  as  far  as  we 
could  and  drop  it  and  leave  it  for  further  consideration 
in  the  hope  that  by  and  by,  by  the  growing  sense  of  the 
nations,  it  would  be  accepted."  1 

2.    Delay  of  Favor  to  Merchant  Ships 

This  topic  was  brought  before  the  IV  Commission  by 
its  president,  Professor  de  Martens,  of  Russia,  in  the 
form  of  two  questions : 

"Is  it  good  warfare  (de  bonne  guerre),  at  the  moment  of  the  open- 
ing of  hostilities,  to  seize  and  confiscate  merchant  ships  belonging  to 
the  enemy,  lying  in  the  ports  of  one  of  the  belligerents?  Is  it  not 
necessary  to  concede  to  such  ships  the  right  of  free  departure  within 
a  fixed  time,  with  or  without  cargoes?" 

Professor  de  Martens,  in  proposing  to  answer  the  first 
question  in  the  negative  and  the  second  in  the  affirmative, 
remarked  that  he  did  not  desire  to  establish  any  new  rule, 
but  merely  to  codify  current  custom;  and  the  Russian 
naval  delegate  made  an  appeal  to  "the  history  of  warfare 
from  primeval  times  down  to  our  own  day"  to  prove  that 
the  Russian  proposition  was  in  accord  with  current  cus- 
tom, and  that  the  delay  should  be  obligatory.  The  Ger- 
man delegation  accepted  this  view  of  the  question  of  obli- 
gation, but  based  it  on  the  history  of  only  the  last  half 
century.  Captain  Ottley,  of  Great  Britain,  stated  that 
his  country  had  accorded  the  delay  as  a  favor,  and  ob- 
jected to  its  being  made  a  right.  The  Japanese  delega- 
tion made  the  same  statement  and  objection  as  the  British ; 

1  From  an  address  before  the  New  York  State  Bar  Association,  January 
24,  1908. 


142  THE  TWO   HAGUE   CONFERENCES 

and  Admiral  Sperry,  of  the  United  States,  said  that  the 
delay  should  be  obligatory  upon  belligerents  only  within 
the  limits  of  military  necessities. 

France  proposed  as  a  compromise  between  the  extremes 
of  favor  and  right,  that  the  statement  be  made  that  the 
"delay  of  favor  is  desirable,"  but  that,  if  a  merchant  ship 
should  be  seized  without  warning,  or  before  it  could 
profit  by  a  warning  to  make  good  its  escape,  it  should  not 
be  confiscated,  but  either  retained  during  the  war  and 
restored  without  indemnity  after  the  war  had  ended,  or 
requisitioned  on  condition  of  indemnity.  This  compro- 
mise proved  acceptable  to  both  parties  to  the  contro- 
versy, and  was  adopted  by  the  conference. 

As  to  the  duration  of  the  delay,  the  Russian  proposal 
was  merely  for  "a  fixed  time";  but  the  Netherlands  dele- 
gation moved  that  the  time  should  be  fixed  at  "not  less 
than  five  days."  Admiral  Sperry  and  other  delegates  ob- 
jected to  the  fixing  of  any  specific  time,  and  it  was  finally 
decided  that  the  ship  should  be  permitted  to  depart  "imme- 
diately, or  after  a  sufficient  delay  of  favor." 

There  was  general  agreement  that  the  delay  of  favor 
should  apply  both  to  merchant  ships  lying  in  the  enemy's 
ports  at  the  commencement  of  hostilities,  and  to  those 
which,  having  left  their  last  port  of  departure  before  the 
commencement  of  the  war,  enter  the  enemy's  ports  in 
ignorance  of  the  hostilities.  But  when  the  question  arose 
as  to  those  ships  encountered  on  the  high  seas  in  ignorance 
of  the  war,  there  was  a  decided  difference  of  opinion. 
Great  Britain  championed  the  view  that  such  ships  should 
be  accorded  the  same  treatment  as  was  provided  for  the 
other  two  classes.  But  Germany  insisted  upon  the  right 
of  destroying  them  on  the  high  seas,  and  argued  that  by 


WARFARE    ON   THE   SEA 


H3 


the  British  plan  an  injustice  would  be  done  those  belliger- 
ents which  had  but  few  and  concentrated  naval  stations 
to  which  to  conduct  their  prizes,  while  those  which  had 
many  and  widely  scattered  ones  would  be  at  an  advantage. 
To  meet  this  objection,  the  commission  adopted  the  rule 
that  the  ships  referred  to  may  be  seized,  on  condition  of 
restoration  after  the  war  without  indemnity,  or  requisi- 
tioned or  even  destroyed,  on  condition  of  indemnity  and 
under  the  obligation  of  providing  for  the  security  of  the 
persons  and  the  preservation  of  the  papers  on  board.  But 
this  did  not  satisfy  the  German  delegation,  who  argued 
that  this  plan  would  entail  upon  the  powers  not  possessing 
many  naval  stations  a  heavy  financial  responsibility  for 
doing  the  only  thing  they  could  do  with  their  prizes, 
that  is,  destroy  them.  The  Russian  delegation  supported 
the  German  view  of  the  matter;  but  the  British  plan  was 
adopted.  And  it  was  further  provided  that  the  cargoes 
found  on  board  of  all  the  three  classes  of  merchant  ships 
should  be  dealt  with  in  the  same  way  as  the  ships  them- 
selves. 

When  these  rules  came  before  the  conference  in  plenary 
session,  the  delegations  from  Germany,  Russia,  China,  and 
Montenegro  made  a  reservation  of  the  last  one,  while  voting 
for  the  rest.  The  entire  project  reported  from  the  commis- 
sion to  the  conference  received  the  votes  of  all  the  other 
thirty-eight  delegations  present,1  with  the  exception  of  that 
of  the  United  States.  General  Porter,  of  the  United  States, 
stated  that  his  delegation  would  abstain  from  casting  its 
vote  for  the  project  for  the  reason  that  the  United  States 
has  always  stood,  and  still  stands,  for  the  principle  of  the 
exemption  of  all  merchant  ships  and  their  cargoes  from 

1  Those  of  Nicaragua  and  Paraguay  were  absent. 


144  THE   TWO    HAGUE   CONFERENCES 

capture,  —  except  those  carrying  contraband  of  war  or 
endeavoring  to  break  a  blockade. 

3.    The  Treatment  of  Captured  Merchant  Crews 

This  topic  was  not  included  within  the  Russian  pro- 
gramme or  proposals,  but  was  introduced  by  the  delega- 
tions of  Great  Britain  and  Belgium.  Great  Britain  pro- 
posed that  when  a  merchant  ship  belonging  to  the  enemy, 
but  navigating  with  an  exclusively  commercial  object,  is 
captured  by  a  belligerent,  the  members  of  its  crew  who 
are  subjects  or  citizens  of  a  neutral  power  shall  not  be 
made  prisoners  of  war.  The  proposition  also  included 
the  captain  and  officers  of  the  ship,  provided  that  they  too 
were  citizens  of  a  neutral  nation  and  would  give  a  promise 
in  writing  not  to  serve  on  an  enemy's  ship  during  the  rest  of 
the  war.     This  proposition  was  adopted  unanimously. 

Belgium's  delegation  proposed  to  extend  this  rule  to  the 
captain,  officers,  and  crew  of  a  captured  merchant  ship, 
even  though  they  were  subjects  or  citizens  of  one  of  the 
belligerent  powers.  And  the  commission  and  conference 
adopted  this  liberal  proposal  also  unanimously. 

4.    The  Exemption  of  Certain  Ships 

This  topic  was  brought  before  the  IV  Commission  by 
Professor  de  Martens's  question,  "Are  coast  fishing 
boats,  even  those  owned  by  the  subjects  of  a  belligerent 
state,  proper  subjects  for  capture  (de  bonne  prise)}" 
This  question  was  answered  by  an  Austro-Hungarian 
proposal  to  exempt  from  capture  small  coasting  vessels 
in  general,  —  except  for  requisition  in  case  of  military 
necessity;     and    by    a    Portuguese    proposal    to    exempt 


WARFARE   ON   THE   SEA 


H5 


fishing  boats  from  capture  provided  they  do  not  approach 
war  ships,  or  hinder  the  operations  or  place  themselves  at 
the  service  of  a  belligerent.  If  they  did  any  of  the  ex- 
cepted things,  they  were,  according  to  the  Portuguese  pro- 
posal, to  be  treated  as  "auxiliary  vessels";  and  the  large 
fishing  vessels  were  to  be  considered  merchant  vessels,  — 
"a  status,"  remarked  Ambassador  Choate,  of  the  United 
States,  "which  is  accorded  them  in  the  American  courts." 

Count  Tornielli,  of  Italy,  proposed  that  the  exemption 
of  ships  engaged  in  scientific  or  humanitarian  missions 
should  also  be  carefully  considered. 

There  was  no  objection  whatever  to  these  various  rules 
as  they  have  been  observed  in  practice  for  many  genera- 
tions, and  every  one  was  glad  to  see  them  "definitively 
consecrated  in  a  conventional  arrangement."  The  rule 
as  adopted  in  regard  to  fishing  boats  provided  that  their 
exemption  should  depend  upon  their  being  used  exclusively 
for  coast  fishing.  But  no  attempt  was  made  to  define  the 
distance  out  to  sea  implied  by  the  term  "coast  fishing," 
because  of  the  variety  of  coasts  and  of  the  depths  of  fish- 
ing. Nor  was  an  attempt  made  to  fix  a  limit  on  the  ton- 
nage of  fishing  boats,  a  maximum  number  for  the  crew, 
or  any  special  kind  of  construction.  It  was  thought  that 
the  sole  proviso  necessary  was  that  they  should  be  used 
exclusively  for  fishing  purposes,  and  a  strict  prohibition 
was  placed  both  upon  their  owners  and  upon  the  states  to 
utilize  them  for  any  military  purposes  whatsoever  while 
preserving  their  peaceful  appearance. 

The  ancient  custom  of  exempting  ships  engaged  in 
scientific  missions,  which  was  strikingly  illustrated  by  the 
case  of  "  La  Perouse,"  was  made  the  basis  of  the  formal 
rule,  proposed  by  the  Italian  delegation,  exempting  from 


146  THE   TWO   HAGUE   CONFERENCES 

capture  ships  charged  cither  with  scientific  or  with  religious 
or  philanthropic  missions. 

5.    The  Exemption  of  Mail 

This  topic  was  not  mentioned  in  the  Russian  programme, 
but  was  introduced  in  the  IV  Commission  by  the  German 
delegation  which  proposed  that  correspondence  conveyed 
by  sea  should  be  made  inviolable,  whatever  its  character, 
official  or  private,  belligerent  or  neutral ;  that  in  case  of 
the  capture  of  the  vessel  carrying  mail,  the  captor  must  pro- 
vide for  its  expedition  by  the  promptest  means  possible ; 
and  that,  apart  from  the  inviolability  of  postal  correspond- 
ence, mail  packet  boats  should  be  subject  to  the  same 
conditions  as  other  merchant  ships,  except  that  belliger- 
ents should  abstain  as  much  as  possible  from  exercising 
over  them  the  right  of  visit,  and  should  make  such  visit 
with  all  possible  consideration. 

This  freedom  demanded  for  mail  in  time  of  war  as  in 
time  of  peace  was  willingly  conceded  by  the  conference, 
which  passed  the  rule  as  proposed  by  the  German  dele- 
gation, except  that  mail  destined  to  or  coming  from  a 
blockaded  port  is  not  to  be  inviolable.  The  general 
satisfaction  was  expressed  by  General  Poortugael,  of 
the  Netherlands,  who  congratulated  the  conference  on 
having  at  last  incorporated  in  international  law  a  reform 
which  has  been  striven  for  for  more  than  thirty  years. 

D.     THE    RIGHTS    AND    DUTIES    OF     NEUTRALS 

a.   The  Conference  of  1899 

This  topic  was  not  mentioned  in  the  Russian  programme, 
but  was  introduced  into  the  discussions  of  one  of  the  naval 


WARFARE    ON   THE    SEA  147 

subcommissions  by  a  very  elementary  and  relatively  unim- 
portant proposition.  In  connection  with  the  question  of 
the  use  of  new  arms  and  methods  in  naval  warfare,  Captain 
Scheine,  of  Russia,  proposed  that  the  contracting  powers 
concede  to  neutral  states  the  "faculty"  x  of  sending  their 
naval  attaches  to  "the  theater  of  maritime  warfare,"  with 
the  authorization  and  under  the  control  of  the  competent 
military  authorities  of  the  belligerent  powers.  He  argued 
that  this  action  would  give  to  neutral  naval  attaches  the 
standing  already  conceded  to  military  attaches  in  armies 
on  land. 

Against  this  proposition  it  was  at  first  argued  that  there 
was  no  urgent  need  of  providing  for  the  measure,  as  it 
was  already  being  resorted  to.  And  when  Captain  Scheine 
replied  that  a  recent  case  had  proved  that  need,  the  sub- 
commission  decided  that  the  proposition  was  equivalent 
to  compelling  belligerents  to  admit  neutrals  on  board  their 
war  ships;  that,  since  the  practice  differed  in  different 
countries,  its  regulation  should  be  left  to  special  treaties 
between  neutrals  and  the  belligerents;  and  that  neither 
the  subcommission  nor  the  conference  was  competent  to 
deal  with  the  matter.  It  therefore  declined  to  discuss  it 
further,  and  the  question  of  neutral  rights  and  duties  on 
the  sea  was  not  again  brought  up  in  the  first  conference. 
But,  as  will  be  seen  later,  in  consequence  of  an  important 
resolution  adopted  by  the  first  conference  concerning 
neutral  rights  and  duties  on  land,  the  maritime  rights  and 
duties  of  neutrals  came  up  in  far  more  important  aspects 
in  the  Conference  of  1907. 

'Captain  Scheine  first  used  the  word  "right"  (droit),  but  changed  it  to 
faculte. 


148  THE   TWO   HAGUE   CONFERENCES 

b.   The  Conference  of  1907 

The  question  of  neutral  rights  and  duties  on  the  sea  was 
mentioned  in  the  Russian  programme,  and  was  referred  to 
the  IV  Commission,  of  which  the  eminent  jurist,  Professor 
de  Martens,  of  Russia,  was  president.  It  was  soon 
apparent  that  the  discussion  of  the  question  would  launch 
the  commission  forth  upon  a  domain  which  was  not  only 
vast  and  complicated,  but  was  almost  untraversed.  The 
commission  therefore  decided  that  it  would  not  divide 
into  sections,  as  the  other  commissions  had  done,  and 
that  its  first  task  should  be  the  assertion  of  fundamental 
principles. 

After  prolonged  discussion,  in  both  a  special  committee 
of  revision  and  in  the  commission  itself,  a  preamble  was 
agreed  upon  which  asserted  that  the  basis  of  any  set  of 
rules  is  the  sovereignty  of  a  neutral  state,  which  can  not 
be  altered  by  the  mere  fact  of  a  war  in  which  it  intends 
to  take  no  part.  Hence,  belligerents  are  bound  to  respect 
the  sovereign  rights  of  neutral  states  and  to  abstain,  within 
neutral  territory  and  waters,  from  all  acts  which  would 
constitute  on  the  part  of  the  states  which  would  tolerate 
them  a  breach  of  their  neutrality.  And  it  is  agreed  that 
the  enforcement  by  a  neutral  state  of  its  rights  shall  never 
be  considered  as  an  unfriendly  act  by  either  belligerent. 

On  the  other  hand,  it  is  conceded  to  be  a  neutral's  duty 
to  apply  impartially  to  all  belligerents  the  rules  adopted, 
to  exercise  all  the  vigilance  it  can  to  prevent  their  violation, 
and  not  to  change  any  rules  during  the  course  of  the  war 
except  when  experience  has  demonstrated  the  necessity  of 
doing  so  in  order  to  safeguard  its  rights. 

It  was  deemed  impossible  for  the  conference  to  adopt 


WARFARE    ON   THE   SEA  149 

rules  to  meet  all  the  circumstances  which  may  arise  in 
practice,  and  hence  it  was  admitted  that  each  neutral  state 
should  adopt  for  itself  the  other  rules  necessary.  But, 
desiring  to  diminish  as  much  as  possible  the  differences 
which  still  exist  in  the  relations  of  the  various  nations  with 
belligerents,  the  conference  requested  the  various  powers 
to  decree  precise  rules  for  regulating  the  consequences  of 
the  state  of  neutrality,  and  to  communicate  them  to  each 
other  by  means  of  a  notification  addressed  to  the  Nether- 
lands government  and  sent  by  it  to  the  others. 

1.    Belligerents  in  Neutral  Waters 

The  rules  adopted  by  the  conference  for  the  use  of  the 
powers  in  common  had  to  do  with  some,  though  unfor- 
tunately not  all,  of  the  subjects  considered  to  be  of  prime 
importance.  The  conduct  of  belligerents  in  neutral  ports 
and  waters  is  first  taken  up.  Belligerents  are  forbidden 
to  use  them  as  a  base  of  naval  operations  against  their 
enemy,  and,  specifically,  to  install  in  them  radio-telegraphic 
stations  or  other  apparatus  designed  to  serve  as  a  means 
of  communication  with  belligerent  forces  on  land  or  sea. 

Any  act  of  hostility,  including  the  capture  of  ships  and 
exercise  of  the  right  of  visit,  committed  by  belligerent 
war  ships  within  neutral  waters,  constitutes  a  violation  of 
neutrality  and  is  strictly  forbidden.  If  a  ship  be  captured 
within  the  territorial  waters  of  a  neutral  state,  that  state 
should,  if  the  prize  is  still  within  its  jurisdiction,  use  the 
means  within  its  power  of  procuring  its  release  together 
with  its  officers  and  crew,  and  for  the  confinement  of  the 
crew  placed  on  board  of  it  by  the  captor ;  if  the  prize  has 
been  taken  beyond  the  jurisdiction  of  the  neutral  state,  that 


150  THE   TWO   HAGUE   CONFERENCES 

state  may  address  itself  to  the  belligerent  government, 
which  must  release  the  prize  with  its  officers  and  crew. 
A  discussion  arose  over  the  word  may  in  the  last  clause 
of  the  above  rule,  some  delegations  desiring  that  the  word 
must  should  be  used  instead;  but  the  majority  decided 
to  give  to  the  neutral  state  the  option  of  addressing  itself 
to  the  offending  belligerent,  or  to  the  new  International 
Prize  Court  established  by  the  conference.  In  accord- 
ance with  old  usage,  belligerents  are  forbidden  to  establish 
any  prize  court  on  neutral  territory  or  on  a  ship  in  neutral 
waters. 

Belligerents  are  forbidden  to  bring  their  prizes  into  a 
neutral  port,  except  when  the  bad  state  of  the  sea  or  lack 
of  coal  or  provisions  prevents  navigation;  and  in  such 
cases,  the  prize  must  be  taken  away  as  soon  as  the  reason 
justifying  its  entrance  has  ceased  to  exist.  If  this  is  not 
done,  the  neutral  power  must  order  it  to  be  done  at  once; 
and  if  its  order  is  disobeyed,  it  must  use  all  the  means  in 
its  power  to  release  the  prize  with  its  officers  and  men,  and 
to  confine  the  crew  sent  on  board  by  the  captor.  The 
same  rule  applies  to  prizes  which  are  brought  into  a  neu- 
tral port  without  the  reasons  stated;  except  that  access 
to  neutral  ports  may  be  granted  to  prizes  which  are  to  be 
sequestered  pending  the  decision  of  a  prize  court.  This 
last  exception,  it  was  hoped,  would  help  to  abolish  the 
destruction  of  neutral  prizes. 

The  stay  and  transactions  of  belligerent  war  ships  in 
neutral  waters  are  regulated  by  a  number  of  important 
rules.  It  is  admitted  that  the  neutrality  of  a  state  is  not 
compromised  by  the  simple  passage  through  its  territorial 
waters  of  belligerent  war  ships  and  their  prizes;  and  that 
it  can  even  permit  such  ships  to  make  use  of  its  licensed 


WARFARE    ON   THE    SEA  151 

pilots.  A  neutral  state  is  conceded  the  right  of  imposing 
its  own  conditions  for  admission  to  its  ports  and  waters, 
provided  it  enforces  them  impartially;  and  it  may  even 
exclude  belligerent  war  ships  which  ignore  such  conditions 
or  violate  its  neutrality. 

Belligerent  war  ships  are  forbidden,  in  neutral  ports  and 
roadsteads,  to  repair  their  damages,  except  to  the  extent 
indispensable  to  the  security  of  their  navigation.  These 
repairs  must  be  effected  as  quickly  as  possible  and  under 
the  supervision  of  the  neutral  power. 

Belligerents  are  forbidden  to  increase,  in  any  manner 
whatever,  their  military  strength,  in  neutral  waters.  And 
neutral  governments  are  bound  to  use  all  the  means  they 
possess  to  prevent,  within  their  jurisdiction,  the  equip- 
ment or  armament  of  any  ship  which  they  have  reasonable 
grounds  for  believing  is  designed  to  cruise  or  to  participate 
in  hostile  operations  against  a  power  with  which  they  are 
at  peace ;  they  are  also  bound  to  prevent  the  departure  of 
any  such  ship  if,  within  their  jurisdiction,  it  has  been 
adapted  wholly  or  partially  to  military  operations.  When 
this  restriction  on  belligerents  and  neutrals  alike  was 
adopted,  the  delegation  from  Brazil  proposed  an  amend- 
ment permitting  the  delivery  from  neutral  dockyards  of 
war  ships  which  have  been  ordered  more  than  six  months 
before  the  declaration  of  war.  This  proposition  was  ob- 
jected to  chiefly  by  Dr.  Drago,  of  Argentina,  and  was 
rejected  in  committee  by  a  vote  of  seven  against  two,  with 
five  abstentions ;  and  it  was  not  renewed  in  the  commission. 

Belligerent  war  ships  are  forbidden,  within  neutral 
ports  or  waters,  to  renew  or  increase  their  military  stores, 
their  armament,  or  their  crews.  Neutral  states,  too,  are 
forbidden,    directly    or   indirectly,  to   furnish    belligerent 


152  THE   TWO    HAGUE   CONFERENCES 

fleets  with  war  ships,  munitions,  or  military  material  of 
any  kind;  but  they  are  not  bound  to  prevent  the  expor- 
tation or  transit,  for  the  use  of  either  belligerent,  of  arms, 
munitions,  or  whatever  may  be  useful  to  an  army  or  a 
fleet. 

The  question  of  food  and  fuel  supplies  proved  a  difficult 
one  and  was  warmly  debated.  The  British  delegation 
proposed  that  belligerent  ships  be  prohibited  from  having 
their  auxiliary  vessels  revictual  them  in  neutral  waters. 
This  proposition  was  voted  twice  in  committee,  the  first 
time  by  ten  votes  to  four,  but  the  second  only  by  five  votes 
to  three,  with  six  abstentions. 

Belligerent  ships  of  war,  in  neutral  ports  and  roadsteads, 
can  take  on  board  only  enough  food  to  make  up  the 
deficiency  in  their  normal  peace  stores.  The  Russian 
delegation  proposed  this  same  rule  for  the  supply  of  fuel; 
but  Great  Britain  and  Japan  opposed  this  vigorously, 
and  demanded  that  the  conference  should  adopt  the 
rule  most  generally  in  force  at  present ;  that  is  to  say,  that 
belligerent  ships  should  take  on  only  enough  fuel  to  enable 
them  to  reach  the  nearest  port  of  their  own  country.  This 
last  rule,  it  was  argued,  requires  only  a  simple  mode  of 
calculation,  and  does  not  impose  on  the  neutral  power 
any  obligation  to  supervise  the  ship's  destination. 

The  German  delegation,  on  the  other  hand,  stood  for 
a  greater  extension  of  the  privilege  of  coaling,  and  pro- 
posed that  belligerents  should  be  permitted  to  fill  their 
bunkers  entirely.  After  a  long  and  apparently  fruitless 
discussion,  the  Japanese  delegation  moved  that  no  rule 
at  all  on  the  subject  be  adopted;  but  this  motion  was 
voted  down,  and  a  compromise  was  adopted,  including 
both  the  British  and  the   German  proposition.     Hence, 


WARFARE   ON   THE   SEA  153 

the  rule  reads  as  follows :  Belligerent  war  ships  may  take 
on  only  enough  fuel  to  enable  them  to  reach  the  nearest 
port  of  their  own  country.  They  can,  however,  take  on 
enough  fuel  to  fill  their  bunkers,  properly  so  called,  when 
they  are  in  the  territory  of  neutral  states  which  have 
adopted  this  rule  regarding  the  supply  of  fuel. 

In  order  to  prevent  frequent  renewals  of  fuel  supply  in 
neutral  ports,  it  was  provided  further  that  belligerent 
war  ships  can  not  take  on  a  second  supply  in  the  same 
neutral  territory  less  than  three  months  after  it  has  secured 
the  first. 

The  British  delegation  attempted  to  procure  the  rule 
that  "a  neutral  power  must  not  knowingly  permit  a  bel- 
ligerent war  ship  within  its  jurisdiction  to  take  on  board 
munitions,  food,  or  fuel,  to  go  to  meet  its  enemy  or  to  en- 
gage in  military  operations."  But  this  attempt  met  with 
decided  failure,  as  a  strong  majority  rejected  the  propo- 
sition as  entailing  too  heavy  a  burden  upon  neutral  states. 

The  next  most  difficult,  and  most  debated,  question 
was  that  of  the  length  of  stay  of  belligerent  war  ships  in 
neutral  ports.  The  Russian  delegation  proposed  that 
the  neutral  state  should  be  at  liberty  to  determine  the 
length  of  such  stay.  The  British,  Japanese,  and  Spanish 
delegations,  on  the  other  hand,  proposed  that  the  length 
of  the  stay  be  limited  to  twenty-four  hours  except  in 
unusual  cases.  The  Italian  delegation  proposed  as  a 
compromise  between  these  two  extremes,  that  the  right 
of  the  neutral  state  to  determine  the  stay  should  be  af- 
firmed, but  that  if  any  neutral  state  has  not  done  so,  then 
the  time  limit  of  twenty-four  hours  should  be  adhered  to. 
This  compromise  received  the  votes  in  committee  of  Great 
Britain,  Japan,  and  Portugal,  against  those  of  Germany 


154  THE   TWO   HAGUE   CONFERENCES 

and  Russia,  and  was  finally  adopted  in  the  commission 
by  a  vote  of  thirty  to  four,  with  ten  abstentions. 

Germany  and  Russia  struggled  hard  to  prevent  the 
adoption  in  any  form  of  the  twenty-four  hours  rule;  and 
failing  in  this,  they  urged  the  adoption  of  the  rule  that 
belligerent  war  ships  should  not  be  permitted  to  remain 
more  than  twenty-four  hours  within  neutral  waters  "sit- 
uated within  the  immediate  proximity  of  the  theater  of 
war."  This  last  phrase  was  defined  by  the  German 
delegation  to  mean  the  space  of  sea  on  which  hostilities 
are  occurring,  or  have  just  occurred,  or  on  which  hostilities 
may  occur  because  of  the  presence  or  the  approach  of  the 
armed  forces  of  two  belligerents.  This  would  not  include 
the  case  of  an  isolated  cruiser  exercising  the  right  of  capture 
or  of  visit,  or  the  passage  of  a  single  belligerent's  naval 
force.  The  argument  advanced  in  support  of  this  propo- 
sition was  that  it  would  restrict  the  need  of  watchfulness 
on  the  part  of  neutral  states  to  a  limited  area  of  their  coasts, 
which,  in  some  cases,  were  very  greatly  extended.  In  illus- 
tration of  this  argument  it  was  said  that  when  a  naval 
battle  was  imminent  in  the  Indian  Ocean,  it  would  not 
then  be  necessary  for  the  states  of  Northern  Europe  to 
watch  their  ports  and  roadsteads;  or  when  the  theater 
of  war  is  in  the  Mediterranean,  the  coasts  of  the  two 
Americas  would  have  no  need  of  a  severe  control. 

The  British  delegation,  in  combating  this  proposition, 
emphasized  the  extreme  difficulty  of  defining  precisely 
the  meaning  of  the  terms  "theater  of  war"  and  "immediate 
proximity,"  and  the  consequent  difficulties  and  compli- 
cations entailed  by  such  vague  terms  upon  neutral  nations. 
It  also  contended  that  the  capture  of  merchant  ships  is 
an  act  of  hostility  and  would  occur  within  a  "theater  of 


WARFARE    ON   THE   SEA 


J55 


war."  It  supported  the  twenty-four  hours  rule  by  argu- 
ing that,  having  been  adopted  by  Great  Britain  forty -five 
years  ago,  and  accepted  by  many  other  powers,  it  has 
proved  its  practicability;  and  that  it  has  the  great  ad- 
vantage for  neutral  powers  of  being  a  definite  rule,  easy 
of  application  by  them. 

The  arguments  of  the  British  delegation  prevailed, 
and  the  commission  decided  by  a  vote  of  thirty  to  two, 
with  ten  abstentions,  to  apply  the  twenty-four  hours  rule, 
"in  default  of  other  special  regulations  prescribed  by 
the  laws  of  the  neutral  state."  As  exceptions  to  the  rule, 
it  was  admitted  that,  if  a  stay  in  a  neutral  port  is  caused 
by  damages  or  by  stress  of  weather,  it  may  be  prolonged 
beyond  the  legal  limit,  but  only  until  the  special  cause  of 
its  delay  is  removed;  and,  also,  that  the  rule  does  not 
apply  to  war  ships  engaged  upon  an  exclusively  scientific, 
religious,  or  charitable  mission. 

The  length  of  stay  in  neutral  ports  raised  again  the 
inflammatory  question  of  fuel,  and  again  a  warm  debate 
occurred  on  the  relation  between  them,  in  both  committee 
and  commission.  The  committee  decided  that  the  taking 
on  of  food  and  fuel  should  give  no  right  to  prolong  the 
legal  duration  of  the  stay.  But  in  the  commission,  Russia 
opposed  this  decision  and,  supported  by  Germany,  argued 
that  the  rules  already  adopted  were  sufficiently  severe, 
and  that  although  large  neutral  powers  have  never  pre- 
vented a  belligerent  ship  from  repleting  its  stores,  small 
neutral  powers  might  submit  to  pressure  which  they 
"could  not  avoid.  The  British  and  Japanese  delegations 
argued  for  the  retention  of  the  rule;  but  the  commission, 
thinking,  apparently,  that  since  the  Russian  delegation 
had  yielded  on  the  twenty-four  hours  rule,   the   British 


156  THE   TWO    HAGUE   CONFERENCES 

delegation  should  yield  on  this  one,  rejected  the  proposed 
rule  by  a  vote  of  twenty-seven  to  five,  with  ten  abstentions. 

In  some  countries,  as  in  Italy,  for  example,  the  law 
provides  that  a  belligerent  ship  can  not  obtain  coal  until 
twenty-four  hours  after  its  arrival.  On  this  account, 
the  commission  decided  that,  in  such  cases,  the  length  of 
stay  may  be  increased  by  twenty-four  hours. 

As  to  the  maximum  number  of  belligerent  war  ships 
admitted  to  a  neutral  port  at  the  same  time,  it  was  readily 
agreed  that  the  neutral  state  itself  should  determine  this 
in  advance;  but  that  in  default  of  such  action  on  its  part, 
the  maximum  number  shall  be  three. 

One  further  question  arose  in  regard  to  belligerents  in 
neutral  ports.  When  the  war  ships  of  different  belliger- 
ents are  in  a  neutral  port  at  the  same  time,  what  shall  be 
the  rule  for  their  departure?  Four  different  answers 
were  proposed  for  this  question:  1.  that  the  neutral 
state  should  decide  the  order  of  their  departure;  2.  that 
the  priority  of  request  should  determine  it;  3.  that  the 
weaker  ship  should  go  first;  and,  4.  that  the  order  of 
arrival  should  determine  the  order  of  departure.  The 
last  answer  appeared  to  impose  least  responsibility  upon 
the  neutral  state,  and  it  was  accordingly  decided  that  the 
order  of  departure  shall  be  determined  by  the  order  of 
arrival,  unless  the  ship  arriving  first  be  in  the  condition 
where  the  prolongation  of  the  legal  stay  is  permissible; 
but  it  was  decided  that  at  least  twenty-four  hours  must 
elapse  between  the  departure  of  belligerent  war  ships  of 
hostile  powers.  It  was  also  decided  that  a  belligerent* 
war  ship  must  not  leave  a  neutral  port  or  roadstead  less 
than  twenty-four  hours  after  the  departure  of  a  merchant 
ship  flying  the  flag  of  its  adversary. 


WARFARE    ON   THE   SEA  157 

The  United  States  naval  delegate,  Admiral  Sperry, 
was  a  member  of  the  committee  of  examination  which  had 
special  charge  of  the  subject  of  belligerents  in  neutral 
waters,  and  took  a  part,  though  not  a  prominent  one,  in 
the  debate.  He  stated  that  the  American  view  of  the 
subject  is  inspired  above  all  by  respect  for  neutrality  and 
impartiality.  Great  Britain's  plan  formed  the  basis  of 
the  rules  adopted,  but  this  was  based  partly  upon  the 
Treaty  of  Washington  of  187 1  between  the  United  States 
and  Great  Britain.  The  United  States  delegation  cast 
its  vote  with  Great  Britain's  and  against  Germany's  in 
the  two  most  debated  questions,  those  of  the  fuel  supply 
and  the  length  of  the  stay  in  neutral  ports. 

2.    Blockade 

The  question  of  blockade  was  not  discussed  by  the 
Conference  of  1899,  nor  was  it  mentioned  in  the  Russian 
programme  of  1907.  But  Professor  de  Martens,  of 
Russia,  president  of  the  IV  Commission  of  the  second 
conference,  introduced  it  among  the  series  of  questions 
which  he  formulated  as  the  basis  of  the  commission's 
deliberations.  His  questions  concerning  it  were  as  fol- 
lows: "As  to  blockade  in  time  of  war,  is  there  need  of 
modifying  the  terms  of  the  Maritime  Declaration  of  Paris 
of  1856?  1    Is  it  desirable  to  state  in  a  formal  convention 

1  The  Declaration  of  Paris  of  1856  was  issued  by  a  congress  representing 
France,  Austria,  Great  Britain,  Prussia,  Russia,  Sardinia  [Italy],  and  Turkey. 
It  contained  the  four  following  rules:  1.  Privateering  is,  and  shall  remain, 
abolished;  2.  A  neutral  flag  covers  the  enemy's  merchandise,  with  the  excep- 
tion of  contraband  of  war;  3.  Neutral  merchandise,  with  the  exception  of 
contraband  of  war,  can  not  be  seized  under  the  enemy's  flag;  4.  Blockades, 
to  be  obligatory,  must  be  effective,  that  is  to  say,  they  must  be  maintained  by 
a  force  sufficient  really  to  prevent  access  to  the  coast  of  the  enemy.     This 


158  THE  TWO   HAGUE   CONFERENCES 

the  consequences,  universally  recognized,  of  the  breaking 
of  an  effective  blockade?" 

In  response  to  these  questions,  the  Italian  delegation 
presented  a  series  of  propositions  designed  to  give  as 
much  liberty  as  possible  to  the  commerce  of  neutrals  with 
belligerents,  by  defining  rigidly  the  meaning  of  an  "effec- 
tive" blockade,  which  alone,  by  the  Declaration  of  Paris 
and  the  law  of  nations,  can  be  considered  binding  upon 
neutral  ships.  In  accordance  with  these  propositions, 
a  blockade  is  effective  only  when  maintained  by  naval 
forces  sufficient  really  to  prevent  the  passage  .of  ships, 
and  stationed  in  such  a  way  as  to  create  an  evident  danger 
to  ships  which  desire  to  attempt  it. 

The  words  stationed  and  evident,  in  the  above  definition, 
were  designed  to  exclude  blockade  by  cruisers  and  by 
submarine  mines  from  the  category  of  effective  blockades, 
and  were  opposed,  consequently,  by  Sir  Ernest  Satow, 
of  Great  Britain,  who  desired  to  substitute  for  them  the 
words  maneuvering  and  real. 

The  Italian  propositions  also  aimed  at  the  restriction 
of  blockade  by  providing  that  a  ship  may  be  seized  for 
violation  of  the  blockade  only  at  the  moment  when  it 
is  attempting  to  break  the  established  lines.  General 
Porter,  of  the  United  States  delegation,  opposed  this 
restriction  and  proposed  that  any  ship  which,  after  a 
blockade  has  been  duly  announced,  sets  sail  for  a  block- 
aded port  or  place,  or  which  attempts  to  break  the  block- 
ade, may  be  seized  for  violation  of  the  blockade.     The 

declaration  has  been  ratified  by  numerous  other  governments  than  those 
represented  at  the  congress  —  by  several  at  the  Hague  Conference  of  1907  — 
but  not  by  the  United  States;  the  reason  why  the  United  States  has  not  rati- 
fied it  has  been  that,  while  abolishing  privateering,  it  did  not  abolish  the  cap- 
ture of  the  enemy's,  as  well  as  neutrals',  private  property  on  the  sea. 


WARFARE   ON   THE   SEA 


159 


Netherlands  representative  opposed  General  Porter's 
proposition  on  the  ground  that  it  was  in  line  with  the  old 
fictitious,  or  "paper,"  blockade  which  has  been  superseded 
for  half  a  century  by  an  "effective"  blockade,  and  that 
by  permitting  the  seizure  of  a  ship  anywhere  on  the  ocean, 
and  before  it  has  really  attempted  to  break  the  blockade, 
as  well  as  on  the  lines  of  actual  blockade,  it  would  be  an 
unjustifiable  detriment  to  neutral  commerce. 

The  Italian  propositions  were  supported  by  Germany, 
Austria,  the  Netherlands,  Turkey,  and  Greece,  in  Europe, 
and  by  Brazil  and  Argentina ;  while  the  British  and  Amer- 
ican propositions  were  supported  by  Japan.  In  view 
of  the  marked  difference  between  the  "Continental" 
and  the  "Anglo-American"  systems  of  blockade,  and 
after  a  discussion  of  the  question  in  both  the  commission 
and  its  special  committee,  it  was  decided  that  it  was  not 
possible  for  the  existing  conference  to  reach  an  agreement 
upon  it.  The  committee,  in  reporting  this  decision  to 
the  commission,  accompanied  it  with  the  hope  that,  in 
case  of  its  further  discussion  being  postponed,  "a  pro- 
found study  of  it  by  the  governments  may  secure,  in  the 
near  future,  the  sanction  of  a  uniform  practice  which 
the  commercial  interests  and  the  peace  of  the  world  de- 
mand." 

The  subject  was  not  taken  up  again,  but  the  conference 
evidently  intended  that  it  should  be  placed  upon  the 
programme  of  the  next  conference;  for  it  is  implied 
by  the  resolution  adopted  that  the  said  programme  shall 
include  a  regulation  of  the  laws  and  customs  of  maritime 
warfare. 


160  THE   TWO   HAGUE   CONFERENCES 

3.    Contraband  of  War 

This  topic  was  not  mentioned  upon  the  Russian  pro- 
gramme, but  President  de  Martens,  of  the  IV  Commission, 
introduced  it  under  the  form  of  the  following  questions: 

"Upon  what  is  founded  the  right  of  belligerent  powers 
to  prohibit  commerce  in  objects  constituting  contraband 
of  war?  Within  what  limits,  of  law  and  of  fact,  may  this 
right  be  exercised  by  belligerents?  Within  what  limits, 
of  law  and  of  fact,  should  this  right  be  respected  by 
neutrals?"  In  response  to  these  questions,  propositions 
were  presented  by  the  delegations  of  Great  Britain,  Ger- 
many, France,  Brazil,  and  the  United  States. 

The  British  proposition  was  the  first  to  be  presented, 
and  was  the  most  radical  of  all.  It  stated  that  the  British 
government  was  "ready  to  abandon  the  principle  of  con- 
traband in  case  of  war  between  the  Powers  who  shall 
sign  a  Convention  to  this  effect";  and  it  provided  that  "the 
right  of  visit  shall  be  exercised  only  for  the  purpose  of 
proving  the  neutral  character  of  the  merchant  ship." 
Lord  Reay,  of  the  British  delegation,  supported  this  propo- 
sition before  the  commission  by  a  speech  in  which  he 
argued  that  with  changed  conditions  of  warfare  and  com- 
merce it  has  become  the  custom  constantly  to  extend  the 
definition  of  contraband  of  war,  and  thereby  to  increase 
the  injury  to  neutral  commerce;  but  that,  at  the  same 
time,  it  has  become  increasingly  more  difficult,  if  not  quite 
impossible,  to  prevent  commerce  in  contraband.  The 
enormous  extension  of  transportation  by  land,  thanks 
to  steam  railways;  the  progress  of  science  which,  by 
multiplying  instruments  of  warfare  on  land  and  sea,  has 
increased  in  an  equal   measure  the  number  of  articles 


WARFARE   ON   THE    SEA  l6l 

necessary  for  the  operations  of  a  fleet  or  an  army;  the 
great  increase  in  the  dimensions  of  a  ship  of  modern  com- 
merce :  such  are  the  reasons  why  the  old  rules  no  longer 
accomplish  the  desired  end  of  preventing  neutrals  from 
trafficking  in  contraband.  Hence  it  is  that  the  belligerent 
has  been  led  to  attempt  the  adaptation  of  old-time  rules 
to  modern  conditions,  and  has  only  succeeded,  in  reality, 
in  creating  a  condition  of  affairs  which^  places  excessive 
obstacles  in  the  way  of  neutral  commerce  without  gaining 
for  himself  an  advantage  equal  to  the  wrong  done  to  neu- 
trals. Established  usage  permits  at  present  a  belligerent 
to  declare,  at  the  beginning  of  a  war,  what  comprise  the 
objects  which  he  intends  to  treat  as  contraband  of  war, 
and  to  add  others  to  the  list  in  the  course  of  hostilities. 
It  is  evidently  in  the  interests  of  the  belligerent  to  make 
a  list  as  complete  as  possible,  and  it  has  often  been  done 
in  terms  so  vague  that  the  interests  of  neutral  commerce 
have  been  injured  beyond  what  is  reasonable.  After 
pointing  out  the  difficulties  of  enforcement,  and  the 
danger  to  peaceful  relations,  of  the  present  distinction 
between  "absolute"  and  "conditional"  contraband, — 
an  argument  which  he  based  upon  Great  Britain's  own 
experience  as  both  belligerent  and  neutral  since  1899, — 
Lord  Reay  appealed  to  the  commission  to  adopt  the 
British  proposition,  and  thus  to  abolish  "a  frequent  cause 
of  international  differences"  and  to  "contribute  to  the 
work  of  peace  and  justice  which  is  the  object  of  our 
efforts." 

The  German,  French,  and  United  States  delegations 
proposed  to  define  more  clearly  the  meaning  and  liability 
of  absolute  and  conditional  contraband ;  and  the  Brazilians 
proposed  to  abolish  the  distinction  between  absolute  and 


162  THE  TWO   HAGUE   CONFERENCES 

conditional  contraband,  and  to  make  stated  classes  of 
articles  alone  subject  to  capture.  These  propositions 
were  supported,  and  the  British  one  opposed,  by  repre- 
sentatives of  each  of  the  four  delegations,  who  endeavored 
to  show  that  by  their  respective  plans  the  principle  of 
contraband  would  be  retained,  in  justice  to  belligerents, 
and  at  the  same  time  the  rights  of  belligerents  and  the 
interests  of  commerce  would  be  reconciled. 

A  number  of  the  smaller  powers,1  on  the  other  hand, 
gladly  welcomed  Great  Britain's  proposal,  which  seemed 
to  them,  in  the  words  of  the  Marquis  de  Soveral,  of  Portu- 
gal, "a  monument  of  profound  wisdom  and  of  great 
abnegation."  After  two  sessions  of  the  commission  had 
been  devoted  to  a  discussion  of  the  question,  a  vote  was 
taken  on  the  British  proposition,  which  resulted  in  twenty- 
six  for,  five  against,  and  four  abstentions.2 

After  this  noteworthy  but  not  unanimous  vote,  the 
whole  question  was  referred  to  a  special  committee  for 
examination  and  report.  Lord  Reay  was  made  chairman 
of  this  committee,  which  comprised  representatives  of 
three  delegations  which  had  voted  for  the  British  propo- 
sition; and  of  four  which  had  voted  against  it.3  In 
opening  its  discussions,  Lord  Reay  said  that  "the  British 
proposition  to  abandon  the  principle  of  contraband  of 
war  not  having  been  accepted  unanimously,  the  committee 
should  seek  in  the  other  propositions  submitted  to  the 
commission  the  elements  of  a  general  agreement  on  the 
question."  Five  sessions  were  devoted  to  the  discussion 
of  these  propositions  by  the  committee,  which  came  to 

1  Sweden,  Norway,  Portugal,  Switzerland,  Belgium,  and  Argentina. 

2  Delegations  opposed:  Germany,  United  States,  France,  Russia,  and 
Montenegro;    abstentions:    Turkey,  Roumania,  Panama,  and  Japan. 

3  Great  Britain,  Brazil,  Chili;  Germany,  United  States,  France,  Russia. 


WARFARE   ON  THE   SEA  163 

a  practical  agreement  upon  a  list  of  twelve  classes  of  arti- 
cles which  should  be  considered  "absolute"  contraband 
of  war;  but  on  the  question  of  what  should  constitute 
"conditional"  contraband,  the  committee  could  not 
reach  any  general  agreement.  This  fact  was  reported 
to  the  commission  which,  in  its  report  to  the  conference, 
expressed  the  belief  that,  in  the  general  and  sincere  desire 
for  a  regulation  satisfactory  to  every  one,  the  question 
should  be  submitted  to  a  renewed  consideration  on  the 
part  of  the  governments  interested. 

The  conference  itself,  in  plenary  session,  did  not  take 
up  the  subject  specifically,  but  intended  it  to  be  included 
in  its  resolution  that  the  elaboration  of  a  code  of  the 
laws  and  customs  of  maritime  warfare  shall  have  a  place 
on  the  programme  of  the  next  conference. 

4.    Destruction  of  Neutral  Prizes 

This  subject  was  brought  before  the  IV  Commission  by 
President  de  Martens's  questions : 

"Is  the  destruction  of  merchant  vessels,  in  time  of  war,  under  a 
neutral  flag  and  loaded  with  troops  or  contraband  of  war,  prohibited 
by  legislation  or  by  international  practice?  Is  the  destruction  of 
all  neutral  prizes,  by  superior  power,  illegal  according  to  legislation 
at  present  in  force  or  according  to  the  practice  of  naval  warfare?" 

In  answer  to  these  questions,  the  British  delegation 
proposed  that  the  destruction  of  a  neutral  prize  by  its 
captor  be  forbidden,  and  that  the  captor  be  required 
to  release  every  neutral  ship  which  he  is  unable  to  take 
before  a  prize  court.  The  United  States  delegation  sub- 
mitted a  similar  rule:  "If,  for  any  reason  whatever,  a 
captured  neutral  vessel  can  not  be  brought  to  adjudication, 


164  THE   TWO   HAGUE   CONFERENCES 

this  vessel  should  be  released."  The  Japanese  delegation 
submitted  the  same  rule  as  the  British,  but  made  the 
following  exceptions:  1.  if  the  vessel  is  in  the  military 
or  naval  service  of  the  enemy,  or  under  his  control  for 
military  or  naval  purposes;  2.  if  the  vessel  forcibly 
resists  visitation  or  capture;  3.  if  the  vessel  tries  by 
flight  to  escape  visitation  or  capture. 

The  Russian  delegation,  on  the  other  hand,  made  the 
exception  to  the  rule  prohibiting  destruction  a  very  elastic 
one;  it  proposed  that  the  exception  should  be  made  in 
those  cases  where  the  preservation  of  the  captured  ship 
"might  compromise  the  safety  of  the  captor  or  the  success 
of  his  operations."  The  argument  upon  which  the  dele- 
gation based  this  broad  exception  was  that  "absolute 
prohibition  of  the  destruction  of  neutral  prizes  by  bellig- 
erents would  have  as  a  consequence  the  establishment  of  a 
position  of  marked  inferiority  for  those  powers  having 
no  naval  bases  beyond  the  coasts  of  their  own  countries." 
The  Russian  naval  delegate,  in  a  speech  before  the  com- 
mission, illustrated  this  argument  by  reference  to  the  case 
of  a  neutral  vessel  captured  by  a  belligerent  in  close  prox- 
imity to  a  superior  naval  force  of  the  enemy,  or  at  a  long 
distance  from  the  belligerent's  ports,  or  when  the  bellig- 
erent's ports  are  blockaded  by  the  enemy. 

Sir  Ernest  Satow,  of  Great  Britain,  replied  to  the  Russian 
argument  by  insisting  that  if  a  belligerent,  because  of 
geographical  location  or  of  the  insufficiency  of  maritime 
resources,  finds  it  impossible  to  exercise  effectually  the 
right  of  seizing  neutral  ships  carrying  contraband  of  war 
or  seeking  to  violate  a  blockade,  then  he  should  leave  them 
at  liberty;  for,  to  give  to  belligerents  the  right  of  sinking 
neutral  prizes  would  lead  inevitably  to  abuses  and  would 


WARFARE    ON   THE   SEA  1 65 

expose  every  neutral  ship  to  the  risk  of  being  sunk  every 
time  it  met  a  belligerent  war  ship,  whose  captain  would 
not  fail  to  exercise  the  right  as  seemed  good  to  himself, 
despite  the  orders  which  he  may  have  received  to  act 
circumspectly.  By  such  a  rule,  the  neutral  vessel  would 
find  itself  in  the  same  position  as  an  enemy's  vessel; 
and  its  position  would  be  even  worse  than  that,  since  its 
government  would  have  no  means  of  redressing  the  wrong 
done  it,  short  of  itself  declaring  war  on  the  belligerent 
captor. 

The  United  States  delegation  supported  the  British 
view  of  the  question;  while  the  German  delegation  took 
the  Russian  side.  Count  Tornielli,  of  Italy,  said  that  the 
absolute  prohibition  of  the  destruction  of  neutral  prizes 
would  probably  be  acceptable  to  powers  with  few  or  no 
widely  scattered  colonial  ports  and  naval  bases  beyond 
the  coasts  of  their  own  countries,  provided  permission 
be  granted  to  belligerents  to  convoy  their  prizes  into 
neutral  ports,  to  be  kept  there  under  sequestration;  he 
proposed,  .accordingly,  that  the  two-  questions  be  discussed 
in  a  joint  meeting  of  the  two  committees  of  the  III 
and  IV  Commissions.  This  proposition  was  adopted; 
but  the  result  of  the  joint  meeting  was  the  practical  failure 
of  both  the  prohibition  of  the  destruction  of  neutral  prizes 
and  the  permission  to  convoy  them  within  neutral  ports.1 

The  rule  that  neutral  powers  may  admit  to  their 
ports  prizes  —  either  belligerent  or  neutral — was  finally 
adopted  by  the  conference ;  but  it  was  deemed  impossible 
to  adopt  any  rule  concerning  the  destruction  of  neutral 
prizes.      Hence  this  latter  subject,  also,  was  left  to  be 

1  Eleven  delegations  voted  for  the  prohibition,  four  against  it,  and  two 
abstained;    nine  voted  for  the  permission,  two  against  it,  and  six  abstained. 


166  THE  TWO   HAGUE   CONFERENCES 

included  within  the  programme  of  the  next  conference, 
under  the  head  of  the  laws  and  customs  of  naval  warfare. 

E.     THE   LAWS   AND   CUSTOMS    OF   NAVAL 
WARFARE 

a.  The  Conference  of  1899 

When  the  revision  of  the  laws  and  customs  of  warfare 
on  land  was  under  discussion,  Count  Nigra,  of  the  Italian 
delegation,  endeavored  to  have  extended  to  naval  warfare 
the  rules  adopted  in  regard  to  bombardment  on  land; 
and  Ambassador  White  and  Captain  Crozier,  of  the  United 
States  delegation,  endeavored  to  have  extended  to  naval 
warfare  the  rules  adopted  in  regard  to  the  treatment  of 
private  property  on  land.  But  the  utmost  that  could  be 
secured  from  the  conference  was  the  adoption,  almost 
unanimously,  of  the  desire  that  these  two  phases  of  naval 
warfare  should  be  referred  to  the  next  conference.  The 
great  work  of  codification,  accomplished  by  the  Con- 
ference of  1899,  was  performed  solely  within  the  field  of 
warfare  on  land ;  but  its  success  in  this  field  stimulated 
the  Conference  of  1907  in  its  noteworthy  attempt  to  codify 
the  laws  and  customs  of  warfare  on  the  sea. 

b.  The  Conference  of  1907 

The  Russian  programme  for  the  Conference  of  1907 
included  the  following  paragraph: 

"As  for  maritime  warfare,  whose  laws  and  customs  differ  on  cer- 
tain points  from  country  to  country,  it  is  necessary  to  establish  definite 
rules  harmonious  with  the  rights  of  belligerents  and  the  interests  of 
neutrals.     A  convention  concerning  these  matters  will  have  to  be 


WARFARE    ON   THE   SEA  167 

elaborated,  and  it  will  form  one  of  the  most  remarkable  portions  of 
the  task  devolved  upon  the  approaching  conference." 

As  parts  of  this  convention,  the  programme  mentioned  the 
subjects  of  bombardment,  mines,  the  transformation  of 
merchant  vessels  into  war  ships,  the  private  property 
of  belligerents,  the  delay  of  favor  accorded  to  merchant 
vessels  at  the  beginning  of  hostilities,  contraband,  the 
conduct  of  belligerent  war  ships  in  neutral  ports,  and  the 
destruction  of  neutral  prizes.  All  of  these  subjects  have 
been  discussed  above,  and  they  form,  of  themselves, 
no  small  part  of  a  naval  code.  After  mentioning  these, 
the  programme  continued:  "In  the  said  convention  there 
should  be  introduced  rules  of  warfare  on  land  which  would 
be  applicable  equally  to  warfare  on  the  sea."  And  in 
outlining  the  work  of  the  IV  Commission,  President  de 
Martens's  last  question  was:  "Within  what  limits  is  the 
convention  of  1899  relative  to  the  laws  and  customs  of 
warfare  on  land  applicable  to  the  operations  of  warfare 
on  the  sea?"  This  question,  which  necessarily  involved 
a  wide  range  of  consideration,  was  not  discussed  by  the 
commission  itself,  but  referred  to  its  committee  of  exami- 
nation, which,  in  turn,  referred  it  for  consideration  and 
report  to  Jonkheer  van  Karnebeek,  of  the  Netherlands. 
This  last-named  gentleman,  with  the  assistance  of  M. 
Beernaert,  of  Belgium,  the  president  of  the  II  Commission 
(which  had  to  deal  with  questions  of  warfare  on  land),  ex- 
amined and  reported  upon  the  applicability  of  each  one  of 
the  fifty-eight  articles  adopted  in  1899  to  control  warfare 
upon  land.  He  reported  to  the  committee  that  forty-six 
of  the  fifty-eight  articles  were  applicable,  that  four  were  not 
applicable,  and  that  there  was  doubt  as  to  the  applica- 


1 68  THE   TWO    HAGUE   CONFERENCES 

bility  of  the  remaining  eight.  The  committee  decided 
that  time  would  not  admit  of  the  discussion  of  the  report 
by  the  existing  conference ; *  and  recommended  that  a 
special  desire  (vosu)  be  adopted  in  plenary  session  that 
the  codification  of  maritime  laws  of  combat  be  made  a 
specific  part  of  the  programme  of  the  next  conference. 
This  vceu  was  unanimously  adopted,  and,  on  motion  of 
Sir  Ernest  Satow,  of  Great  Britain,  the  further  vceu  was 
adopted  that  "  meanwhile,  the  powers  shall  apply  as  far 
as  possible  to  naval  warfare  the  principles  of  the  conven- 
tion of  1899  relative  to  warfare  on  land." 

1  The  report  was  not  commenced  until  August  28,  and  presented  to  the 
committee  until  September  6. 


XII.    WARFARE    ON    LAND 

A.   NEW   ARMS   AND   METHODS 

a.    The  Conference  of  1899 

"From  the  moment  when  every  chance  of  an  armed 
conflict  between  nations  can  not  be  absolutely  prevented, 
it  becomes  a  great  work  for  humanity  to  mitigate  the 
horrors  of  war."  These  are  the  words  by  which  President 
de  Staal  invited  the  attention  of  the  conference  to  the 
subject  of  warfare  on  land.  The  Russian  programme  had 
mentioned  two  aspects  of  the  subject,  the  use  of  new  kinds 
of  firearms  and  explosives,  and  the  laws  and  customs  of 
warfare.  The  first  of  these  was  taken  up  for  discussion 
in  the  military  subcommission  of  the  I  Commission. 
This  discussion  occupied  five  meetings  of  the  subcommis- 
sion, and  was  based  upon  propositions  introduced,  ex- 
plained, and  defended,  for  the  most  part,  by  Russia's 
military  delegate,  Colonel  Gilinsky.  These  propositions 
had  a  precedent  in  the  Convention  of  St.  Petersburg 
of  1868,  when  the  representatives  of  seventeen  European 
powers  met  on  the  invitation  of  the  Russian  government 
and  agreed  upon  a  short  "Declaration."  This  declara- 
tion asserted  that  the  progress  of  civilization  should  have 
for  its  result  all  possible  diminution  of  the  calamities  of 
war;  that  the  only  legitimate  object  of  warfare  is  the 
weakening  of  the  military  forces  of  the  enemy;  that  for 
this  purpose  it  is  enough  to  put  hors  de  combat  the  largest 

169 


170  THE   TWO   HAGUE   CONFERENCES 

possible  number  of  men;  that  this  object  would  be  ex- 
ceeded by  the  use  of  weapons  which  would  uselessly 
aggravate  the  sufferings  of  men  put  hors  de  combat,  or 
which  would  make  their  death  inevitable.  The  declara- 
tion was  followed  by  an  agreement  between  the  contract- 
ing parties  to  renounce  the  use,  in  warfare  with  each  other, 
of  projectiles  weighing  less  than  four  hundred  grammes 
and  being  either  explosive  or  charged  with  explosive  or 
inflammable  materials. 

1.    Explosives 

In  the  spirit  of  this  declaration  and  agreement  Colonel 
Gilinsky  presented  to  the  conference  several  important 
propositions.  The  first  of  these  was  a  proposal  to  restrict 
the  use,  in  military  operations,  of  the  formidable  explosives 
already  existing,  and  to  prohibit  the  use  of  still  more 
powerful  ones.  Captain  Crozier,  of  the  United  States, 
took  the  lead  in  opposing  this  proposition,  and  he  did  so 
on  the  ground  that  its  adoption  would  be  an  obstacle  to 
one  of  Russia's  prime  objects  in  calling  the  conference, 
that  is  to  say,  economy.  If  by  a  more  powerful  explosive 
is  meant  one  which  gives  a  greater  velocity  to  a  projectile 
of  a  given  weight,  or  the  same  velocity  to  a  heavier  pro- 
jectile, then  an  explosive  is  powerful  in  proportion  to  the 
volume  of  gas  produced  by  the  heat  of  combustion; 
hence  it  is  quite  possible  to  invent  an  explosive  which, 
supplying  a  larger  volume  of  gas  at  a  lower  temperature 
of  combustion,  would  be  more  powerful  than  any  now 
in  use  and,  at  the  same  time,  because  of  the  low  tempera- 
ture, would  cause  less  strain  upon  the  musket  and  permit 
its  longer  use.     This  argument  was  accepted  as  conclu- 


WARFARE    ON   LAND 


171 


sive,  —  although  other  arguments,  unexpressed,  were 
doubtless  present  in  the  thought  of  the  delegates,  —  and 
it  was  unanimously  voted  that  each  state  should  be  left 
in  entire  liberty  as  to  the  use  of  explosives  for  propelling 
missiles. 

Colonel  Gilinsky  then  proposed  to  prohibit  the  use  of 
new  explosives  —  that  is,  "high  explosives,"  or  those  used 
as  the  bursting  charge  of  projectiles  —  more  powerful 
than  any  now  used.  This  proposition  was  rejected, 
without  discussion,  by  a  vote  of  nine  ayes  and  twelve 
noes.1 

Colonel  Gilinsky's  third  proposition  was  to  prohibit 
the  use,  for  field  artillery,  of  bursting,  or  mining,  shells. 
This  proposition  was  also  rejected,  without  discussion,  by 
a  vote  of  ten  ayes  and  eleven  noes.2 

2.    Field  Guns 

The  Russian  proposition  on  this  topic  was  that  the  type 
of  cannon  at  present  in  use  in  several  armies,  that  is  to 
say,  the  new  rapid-fire  cannon,  should  not  be  changed 
during  a  period  to  be  agreed  upon.  Colonel  Gilinsky 
based  this  proposition  on  the  argument  of  economy,  — 
"the  reduction  of  the  military  expenses  which  burden  the 
nations."  But  the  representative  of  France  said  that 
if  the  proposition  implied  that  those  countries  having 
inferior  artillery  could  adopt  the  best  now  in  use,  it  would 
entail  even  greater  expenses  upon  them  by  inciting  them 

1  All  of  the  eight  "great  powers,"  except  Russia,  voted  in  the  negative 
with  Spain,   Sweden  and   Norway,   Denmark,  Turkey,   and   Roumania. 

2  Denmark  voted  this  time  with  the  affirmative;  the  other  negative  votes 
were  as  before. 


172  THE   TWO   HAGUE   CONFERENCES 

to  place  their  equipment  upon  a  plane  of  equality  with 
the  best. 

A  vote  was  taken,  accordingly,  upon  such  permission 
being  given  to  the  "backward"  nations,  with  the  result 
that  five  delegations  voted  aye,1  and  the  other  delegations 
either  abstained  from  voting,  or  voted  upon  other  phases 
of  the  question.  As  one  of  the  delegates  said:  "It  was 
impossible  to  state  what  the  result  of  the  vote  was,  — 
the  only  thing  evident  was  that  the  question  was  not 
entirely  understood  by  the  voting  delegates." 

The  president  of  the  subcommission  then  put  to  a  vote 
the  proposition  presented  by  Russia,  with  the  result  that 
all  of  the  delegations  voted  against  it,  except  that  Russia 
and  Bulgaria  abstained  from  voting  at  all.  Colonel  Gilin- 
sky  afterwards  explained  that  he  had  abstained  from 
voting  on  the  proposition  because  it  had  been  made  to 
imply  that  no  state,  even  the  backward  ones,  could  intro- 
duce a  better  type  of  cannon  than  it  already  possessed; 
while  he  had  intended  it  to  mean  that  the  new  rapid-fire 
cannon  should  be  considered  the  best  type,  and  that  no  im- 
provements on  it  should  be  permitted  for  a  specified  time. 

The  subcommission's  report  was  accepted  by  the  con- 
ference, and  no  further  attempt  was  made  to  prohibit  the 
use  of  improved  field  artillery. 

3.    Muskets 

Colonel  Gilinsky  introduced  his  proposition  as  to  mus- 
kets by  saying  that  the  musket  at  present  in  use  in  all 
armies  is  nearly  of  the  same  caliber  and  quality,  and  that 
therefore  he  would  propose  that  a  period  be  agreed  upon 

1  Those  of  the  United  States,  Italy,  Belgium,  Servia,  and  Siam, 


WARFARE    ON   LAND 


J73 


during  which  no  state  should  change  the  type  of  musket 
at  present  in  use  in  its  own  armies.  This  proposition 
differed,  it  was  noticed,  from  the  Russian  proposition 
regarding  field  artillery,  since  it  would  not  permit  "back- 
ward" nations  to  introduce  improved  types  of  muskets; 
but  Colonel  Gilinsky  defended  this  difference  on  the 
ground  that  "the  type  of  musket  is  very  nearly  the  same 
at  present  in  all  armies,  while  the  type  of  field  artillery 
differs  greatly."  He  supported  his  proposition  entirely 
on  the  ground  of  economy,  and  said  that  it  would  not 
preclude  new  inventions  designed  to  improve  the  existing 
type  of  musket,  but  merely  those  which  would  modify 
it  essentially  or  transform  it  into  an  automatic  musket. 
"The  automatic  musket,"  he  added,  "exists  for  the  present 
only  as  a  proposition,  and  has  not  yet  been  adopted  any- 
where." 

In  the  discussion  of  this  proposition,  the  objection  was 
at  once  made,  by  General  Zuccari,  of  Italy,  that  the  dif- 
ference between  the  muskets  of  different  nations  is  not 
so  small  as  stated,  but  that  in  reality  it  is  quite  great. 
And  Colonel  Kuepach,  of  Austria-Hungary,  stated  that 
an  improvement,  even  a  slight  improvement,  in  muskets 
at  present  in  use  might  change  entirely  their  character 
or  type.  After  a  further  exchange  of  views,  it  was 
agreed  that  the  Russian  delegates  should  present  a  detailed 
proposition  specifying  exact  conditions.  This  they  did, 
as  follows: 

i.  The  minimum  weight  of  the  musket  shall  be  4 
kilogrammes. 

2.  The  minimum  caliber  shall  be  63  millimeters. 

3.  The  weight  of  the  bullet  shall  not  be  less  than  iog 
grammes. 


174 


THE   TWO    HAGUE   CONFERENCES 


4.  *  The  initial  vitality  shall  not  exceed  720  meters. 

5.  The  rapidity  of  tiring  shall  be  limited  to  25  shots 
per  minute. 

Colonel  von  Schwarzhoff,  of  Germany,  analyzed  these 
conditions,  and  objected  to  the  first  on  the  ground  of 
humanity  to  the  soldier.  "It  is  far  more  humane," 
he  said,  "to  lighten  the  load  which  the  soldier  must  carry, 
than  to  fix  a  minimum  weight  for  one  part  of  his  equip- 
ment; all  that  is  taken  from  the  weight  of  the  musket 
would  soon  be  replaced  by  an  increase  in  that  of  powder 
and  shot."  As  to  the  minimum  weight  proposed  for  both 
musket  and  bullet,  Colonel  von  Schwarzhoff  stated  that 
there  were  six  governments  which  would  be  obliged  by 
the  plan  to  make  changes,  little  desirable  either  from  the 
military  or  economical  point  of  view.  The  initial  vitality, 
he  said,  depends  at  least  as  much  on  the  powder  used  as 
on  the  kind  or  weight  of  the  musket  and  the  form  of  the 
projectile;  and,  since  each  power  is  to  be  left  at  liberty 
to  adopt  new  explosives,  it  would  seem  logical  not  to 
limit  the  initial  vitality.  The  rapidity  of  firing  does  not 
depend  less,  he  argued,  on  the  skill  and  training  of  the 
marksman  than  on  the  mechanism  of  the  musket ;  hence, 
in  fixing  a  maximum  it  would  be  necessary  to  state  whether 
it  is  a  moderate  rapidity  to  which  the  majority  of  soldiers 
may  attain,  or  a  rapidity  which  the  best  trained  men 
can  not  exceed.  He  admitted,  however,  that  the  proposed 
maximum  was  large  enough. 

A  vote  was  then  taken  on  the  detailed  proposition,  with 
the  result  that  fourteen  delegations  voted  against  it,  four  ! 
for  it,  and  two  2  abstained. 

1  The  Netherlands,  Persia,  Russia,  and  Bulgaria. 

2  France,  Roumania. 


WARFARE   ON   LAND 


175 


General  den  Beer  Poortugael,  of  the  Netherlands,  had 
feared  that  the  detailed  proposition  of  Russia  would  meet 
with  defeat,  and  before  it  was  put  to  a  vote  he  proposed 
a  general  agreement  between  the  powers  "to  use  in  their 
armies,  during  the  next  five  years,  only  the  muskets  in 
use  at  the  present  time";  and  that  "the  improvements 
permitted  should  be  of  a  kind  to  change  neither  the  pres- 
ent type  nor  caliber."  Colonel  von  Schwarzhoff  opposed 
this  proposition  on  the  ground  that  it  did  not  define  what 
improvements  should  be  permitted:  "In  case  of  doubt,  it 
would  be  necessary,  for  the  loyal  fulfillment  of  the  agree- 
ment, to  make  known  the  improvement  to  the  other  powers 
and  ask  their  consent  before  adopting  it,  —  an  impos- 
sibility." 

The  proposition  was  put  to  a  vote  and  lost  by  a  vote  of 
ten  to  ten,  with  one  abstention.1 

At  the  next  session  of  the  subcommission,  General 
Poortugael  presented  another  general  proposition,  similar 
to  the  first  but  including  the  proviso  that  the  powers 
might  adopt  any  improvement  in  the  best  existing  type  of 
musket  which  should  appear  advantageous  to  them,  and 
that  all  the  powers  might  adopt  the  best  type  then  in  use. 
He  supported  this  proposition  in  an  ardent  speech  which, 
by  unanimous  consent,  was  spread  in  full  upon  the  minutes. 
He  first  explained  that  the  reason  why  he  had  presented 
another  proposition  despite  the  adverse  action  taken  on 
the  two  others,  was  that  his  conscience  told  him  that  they 

1  The  four  delegations  which  voted  for  the  Russian  detailed  proposition, 
voted  also  for  the  Netherlands'  general  one;  and  in  addition  to  these,  the 
following  delegations  voted  for  the  latter:  Belgium,  Denmark,  Spain,  Siam, 
Sweden  and  Norway,  and  Switzerland;  France  voted  against  the  latter,  and 
Roumania  abstained;  China,  Mexico,  Greece,  and  Luxemburg  were  absent; 
Montenegro,  represented  by  Russia,  did  not  vote. 


176  THE   TWO   HAGUE   CONFERENCES 

should  do  all  within  their  power  to  arrive  at  an  agreement 
on  the  question  of  muskets ;  for,  of  all  the  questions  sub- 
mitted to  the  I  Commission,  that  of  muskets  he  believed 
to  be  the  easiest  of  solution,  since  nearly  all  armies  were  in 
possession  of  good  muskets  of  the  same  type. 

"Gentlemen,"  he  continued,  "it  is  my  belief  that,  not  only  from 
an  economic  point  of  view,  but  also  from  the  point  of  view  of  states- 
manship {haute  politique),  which  is  fortunately  the  same  for  every 
state,  it  is  necessary  and  even  urgent  that  we  should  do  something. 

"Whole  populations,  in  every  civilized  land,  expect  that  of  us;  it 
would  be  very  sad  to  disappoint  their  hope.  They  ask,  they  beseech 
that  a  stop  shall  be  put  to  throwing  millions,  nearly  billions,  into  the 
gulf  of  incessant  changes,  which  are  made  so  rapidly  that  sometimes 
the  weapon  is  changed  three  or  four  times  before  it  is  used.  They 
ask,  they  beseech  that  a  stop  shall  be  put  to  the  extravagant  expendi- 
tures devoted  to  the  implements  of  warfare,  so  that  satisfaction  can 
be  given  to  the  social  needs  which  are  growing  more  and  more  pressing 
and  which,  without  money,  must  remain  neglected.  They  ask,  they 
beseech  that  we  stop,  if  only  for  a  time,  and  if  only  to  take  breath,  in 
this  frantic  competition  to  hold  the  record  for  military  inventions. 
At  the  very  least,  let  us  try  to  agree  on  the  question  which  lends  itself 
most  readily  to  agreement ;  to  do  otherwise  would  be  to  deceive  cruelly 
the  nations. 

"Let  us  discard  all  distrust,  which  is  a  bad  counsellor.  Let  us  not 
forget  that  in  this  very  question  of  muskets,  Russia,  which  made  the 
original  proposition,  is  equipped  at  present  with  a  musket  of  large 
caliber,  that  of  7.62  millimeters,  while  neighboring  states,  Sweden 
and  Norway  and  Roumania,  have  better  muskets  of  a  caliber  of  6.5 
millimeters.  This,  then,  is  an  evident  proof  of  disinterestedness,  — 
a  sacrifice,  if  you  will,  laid  on  the  altar  of  the  common  welfare. 

"Let  us  not  forget  that  it  is  the  generous  thought  of  the  young 
and  august  emperor  of  the  largest  empire  in  the  world,  who  has  re- 
vealed his  desire  for  prolonged  peace;  that,  in  his  journey  in  Pales- 
tine, another  emperor,  young,  generous,  and  genial,  at  the  head  of  the 
formidable  power  of  Germany,  solemnly  expressed  on  the  classic  soil 
which  we  Christians  call  the  Holy  Land,  his  firm  desire  of  main- 


WARFARE    ON   LAND 


177 


taining  peace;  and  that,  as  all  the  world  knows,  the  Emperor  of 
Austria-Hungary,  the  illustrious  sovereign  who  lately  celebrated  his 
jubilee  in  circumstances  so  sad,  who  lives  only  for  the  welfare  of  the 
peoples  whom  he  governs,  is  animated  by  sentiments  equally  peaceful. 

"Let  us  not  forget,  either,  as  the  honorable  President  of  the  Con- 
ference, M.  de  Staal,  has  said,  that  'the  eagerness  with  which  all 
the  powers  have  accepted  the  proposition  contained  in  the  Russian 
circulars  is  the  most  eloquent  proof  of  their  unanimity  with  peace- 
ful ideas.' 

"In  this  state  of  things  why  do  we  hesitate,  —  we  who  have  met 
here  to  give  a  body,  so  to  speak,  to  these  ideas,  —  why  do  we  hesitate 
to  do  the  minimum ;  that  is  to  say,  to  agree  that  only  for  the  short  time 
of  five  years  we  will  all  keep  the  muskets  that  we  have  now,  except 
that  those  states  which  have  inferior  muskets  —  those  without  maga- 
zine —  may  choose  any  existing  type  ? 

"If,  gentlemen,  after  all  that  has  happened  and  is  expected,  this 
conference,  proudly  announced  and  constituted,  and  unparalleled  in 
history,  accomplishes  nothing  in  the  way  of  economies  so  ardently 
desired,  —  if  we  place  not  a  single  restriction  on  the  ruinous  trans- 
formation of  armaments,  we  shall  forge  weapons  for  the  enemy  com- 
mon to  all  governments,  for  those  who  wish  to  revolutionize  the  estab- 
lished order  of  the  world  and  who  will  not  hesitate  to  scatter  among 
the  people  venomous  germs  and  a  doubt  as  to  the  sincerity  of  the  gov- 
ernments whom  we  represent.  Those  false  prophets  who  make  war 
only  upon  each  other  will  say  to  the  people:  'Come  with  us 
all  you  who  are  oppressed  and  who  ask  for  bread  and  peace ;  we 
alone  can  give  them  to  you.'  And  the  people  will  throw  them- 
selves into  their  arms  and  will  become  their  prey." 

General  Poortugael  then  endeavored  to  show  that  his 
proposition  was  free  from  the  objections  which  had  been 
made  to  the  others,  and  in  concluding  his  address,  an- 
swered the  objection  that  the  various  governments  could 
not  be  trusted  to  introduce  improvements  without  chang- 
ing the  type  of  their  muskets,  by  saying : 

"I  take  the  liberty  of  replying  as  did  the  President  of  the  Brussels 
Conference,  Baron  Jomini:   'It  would  be  a  wrong  to  the  contracting 


178  THE   TWO   HAGUE   CONFERENCES 

parties  to  imagine  that  they  could  have  the  intention  of  not  abiding 
by  their  agreement.'  Gentlemen,  it  is  with  nations  as  with  indi- 
viduals. Francis  I,  defeated  and  made  prisoner  at  Pavia  by  Charles 
V,  wrote  to  his  mother  from  the  Chateau  de  Pizzeghettone,  these 
memorable  words:  'Madame,  all  is  lost  but  honor.'  He  did  not 
cease  to  be  'the  great  king'  when  he  had  regained  all  that  he  had  lost, 
because  honor  still  stayed  with  him.  But,  far  different  would  it  be 
to  forfeit  an  oath  or  an  accepted  agreement : 

"  'Honor  is  like  an  isle  with  steep  and  landless  shore; 

When  once  it  has  been  lost,  it  can  not  be  regained  more. ' 

"I  am  convinced,  then,  gentlemen,  that  to  be  sure  that  the  gov- 
ernments will  evade  neither  the  spirit  nor  the  letter  of  the  agreement, 
there  is  no  better  watchman,  than  the  nations'  honor.  Let  us  believe 
it!" 

In  reply  to  these  glowing  words,  and  after  a  motion 
to  record,  print,  and  distribute  them  had  been  passed, 
Colonel  von  Schwarzhoff  said  that  as  a  simple  technical 
delegate  he  was  not  in  a  position  to  follow  General  Poor- 
tugael  into  the  domain  of  statesmanship  {la  haute  politique). 
He  admitted  that  after  all  the  efforts  made  it  would  be  very 
desirable  to  arrive  at  some  agreement,  but  questioned  if 
the  plan  proposed  could  secure  it.  The  technical  object, 
he  said,  is  to  realize  economies  or  prevent  new  expendi- 
tures in  the  equipment  of  infantry;  but  since  it  was  pro- 
posed to  permit  all  the  governments  to  introduce  im- 
provements in  their  muskets,  the  result  would  be,  probably, 
a  double  expenditure :  first,  for  the  improvements  during 
the  five-year  period,  and  then  for  a  new  type  of  musket. 
Besides,  he  argued,  it  would  be  possible  by  modifications, 
slight  but  expensive,  to  produce  a  weapon  much  superior 
to  the  existing  musket,  and  this  would-  oblige  the  other 
powers  to  keep  pace  with  them. 

General  Poortugael  in  reply  to  these  arguments  said 


WARFARE   ON   LAND  179 

that  it  was  not  very  probable  that,  within  the  short  time 
of  five  years,  there  would  be  need  of  making  any  consid- 
erable change  in  the  existing  musket ;  and  that  in  any 
case  there  was  a  great  difference  between  expenditures  for 
improving  the  existing  musket,  which  are  usually  but 
small,  and  expenditures  for  an  entire  change  of  arms,  which 
requires  three  muskets  for  each  man  and  costs,  for  an 
army  of  500,000  infantrymen,  the  sum  of  $15,000,000.00. 

General  Sir  John  Ardagh,  of  Great  Britain,  stated  that 
such  an  agreement  would  be  very  difficult  to  enforce ;  that, 
for  example,  a  state  might  make  a  new  type  of  musket  in 
its  own  arsenals  and  distribute  them  to  its  soldiers  only 
when  war  commenced.  The  Russian  delegates  replied 
that  this  objection  would  be  met  by  the  good  faith  of 
governments  and  by  the  control  of  public  opinion,  which 
was  sufficient  even  in  the  case  of  commercial  agreements. 
But  Colonel  von  Schwarzhoff  said  that  the  difficulty 
would  arise  in  good  faith,  and  in  regard  to  the  question 
of  what  were  merely  improvements  on  the  existing  type 
and  what  were  radical  transformations. 

The  vote  which  followed  this  extended  discussion  resulted 
in  ten  ayes,  three  noes,1  and  eight  abstentions.2 

Five  of  the  abstentions  were  due  to  lack  of  instructions 
from  the  home  governments;  and  because  of  this  fact, 
and  of  the  lack  of  a  more  decided  vote,  the  subcommission 
refrained  from  making  any  recommendation  on  the  sub- 
ject of  muskets.  When  the  report  on  the  discussion  was 
presented  to  the  I  Commission,  the  delegations  from  the 
United  States,  Austria,  France,  Japan,  and  Turkey  added 

1  Germany,  Italy,  and  Great  Britain. 

2  The  United  States,  Austria,  France,  Japan,  Portugal,  Switzerland,  and 
Turkey. 


180  THE   TWO   HAGUE   CONFERENCES 

their  votes  against  General  Poortugael's  proposition ;  and, 
on  the  motion  of  M.  van  Karnebeek,  of  the  Netherlands, 
the  commission  voted  unanimously  to  leave  the  question 
to  be  studied  carefully  by  the  governments  themselves, 
and  to  be  discussed  in  another  conference.  This  vote 
was  adopted  unanimously,  with  a  few  abstentions,  by  the 
conference,  and  the  question  did  not  arise  again  in  1899. 

The  attitude  of  the  United  States  government  towards 
the  Russian  proposition  as  to  muskets  was  stated,  early 
in  the  debate,  by  Captain  Crozier,  who  said  that  it  did 
not  desire  to  limit  itself  in  the  case  of  hew  inventions 
having  for  their  object  the  increase  of  efficiency  in  military 
weapons,  although  there  was  then  no  question  of  a  change 
of  small  arms.  The  United  States  delegation  took  no 
further  part  in  the  debate,  but  cast  its  vote  against  the 
Russian  and  the  two  Netherlands  propositions. 

Still  another  question  as  to  muskets  was  raised  and 
voted  upon,  but  not  discussed.  The  Russian  delegation 
proposed  that  the  use  of  automatic  muskets  should  be 
forbidden.  Nine  votes  were  cast  in  favor  of  this  propo- 
sition, six  votes  against  it,1  and  six  delegations  abstained.2 

The  question  of  prohibiting  the  use  of  new  means  of 
destruction  depending  on  the  application  of  chemistry 
or  electricity  was  also  raised  in  the  subcommission,  but 
not  discussed  by  it,  on  the  ground  that  it  had  not  been 
mentioned  in  the  Russian  programme.  When  it  came 
up  in  the  commission,  Colonel  Gilinsky  favored  such  pro- 
hibition for  the  reason  that  "Russia  is  of  the  opinion  that 
the    existing    methods    of    making    war    are    sufficient." 

1  Germany,  Austria-Hungary,  Italy,  the  United  States,  Great  Britain,  and 
Sweden  and  Norway. 

2  France,  Japan,  Portugal,  Roumania,  Servia,  and  Turkey. 


WARFARE    ON   LAND  181 

Colonel  von  Schwarzhoff  also  admitted  that  the  existing 
methods  of  making  war  were  sufficient,  but  said:  "We 
should  not  tie  our  hands  in  advance  so  that  we  should  have 
to  ignore  more  humane  methods  which  may  be  invented 
in  the  future."  This  last  argument  was  accepted  by  the 
commission,  and  the  question  was  dropped  without  fur- 
ther discussion  or  vote. 

4.    Bullets 

The  Russian  programme  did  not  specify  the  subject  of 
bullets ;  but  when  new  arms  and  methods  of  warfare  came 
up  for  discussion,  Colonel  Kunzli,  of  Switzerland,  in- 
quired if  it  would  not  be  appropriate  to  prohibit  the  use 
of  projectiles  which  aggravate  wounds  and  increase  suffer- 
ing, such,  for  example,  as  "dumdum"  bullets.  General 
Poortugael,  of  the  Netherlands,  then  said  that  his  govern- 
ment had  instructed  him  to  demand  the  formal  prohibi- 
tion of  dumdum  bullets,  and  defined  them  as  inhuman 
projectiles  which  make  incurable  wounds;  which  have 
very  soft  points  and  very  hard  jackets,  and,  with  a  softer 
inner  substance,  explode  within  the  body,  thus  causing  a 
small  hole  on  entering,  but  an  enormous  one  on  leaving, 
the  body  of  the  victim.  Such  damages,  he  asserted,  are 
not  necessary,  for  it  is  sufficient  to  render  soldiers  inca- 
pable of  service  for  a  time  without  mutilating  them. 

General  Sir  John  Ardagh,  of  Great  Britain,  replied 
that  a  mistake  had  been  made  in  attributing  such  conse- 
quences to  dumdum  bullets,  for  they  were  like  other 
bullets,  an  ordinary  projectile. 

The  president  of  the  subcommission  then  said  that  a 
concrete  proposition  was  prerequisite  to  any  practical 
result,  and  requested  Colonel  Kunzli  to  present  such  propo- 


1 82  THE  TWO   HAGUE   CONFERENCES 

sition  at  the  next  meeting.  Colonel  Kunzli  did  so  as 
follows:  "It  is  forbidden  to  use  infantry  projectiles,  the 
point  of  whose  jacket  is  perforated  or  filed,  and  those 
whose  direct  passage  through  the  body  is  hindered  by  an 
empty  interior  or  by  one  filled  with  soft  lead."  Colonel 
Gilinsky,  of  Russia,  presented  at  the  same  time  a  resolu- 
tion, which,  amended  by  General  Mounier,  of  France, 
was  adopted  by  the  conference  and  was  as  follows:  "The 
contracting  Powers  prohibit  the  use  of  bullets  which  ex- 
pand or  flatten  easily  in  the  human  body,  such  as  bullets 
with  hard  jackets,  whose  jacket  does  not  entirely  cover  the 
core  or  has  incisions  in  it." 

When  this  latter  proposition  was  made,  it  was  accepted 
without  debate  by  sixteen  of  the  twenty  delegations  pres- 
ent ;  the  delegates  of  the  United  States,  Germany,  and 
Roumania  said  that  they  believed  it  would  be  acceptable 
to  their  governments ;  and  it  was  taken  under  considera- 
tion by  the  delegation  of  Great  Britain.  At  the  next 
meeting  it  was  put  to  a  formal  vote  and  received  nineteen 
ayes,  and  one  no.1 

In  justification  of  his  negative  vote  on  the  proposition, 
Sir  John  Ardagh,  of  Great  Britain,  demanded  the  liberty 
of  using  against  savage  populations  effective  projectiles, 
and  said  that,  in  civilized  warfare,  a  soldier  wounded  by 
a  ball  of  small  caliber  retires  to  an  ambulance  and  advances 
no  longer ;  but  that  in  war  against  savages  the  case  is  very 
different :  although  penetrated  two  or  three  times,  the 
savage  does  not  summon  hospital  attendants,  he  does  not 
stop  marching  forward,  and  before  you  have  had  time  to 

1  The  delegation  from  Great  Britain  voted  in  the  negative;  the  Austrian 
delegation  abstained  from  voting  on  this  proposition  because  it  had  just 
proposed  one  more  general  in  character,  which  provided  for  the  prohibition 
of  bullets  that  cause  wounds  unnecessarily  cruel. 


WARFARE   ON   LAND  183 

explain  to  him  that  he  is  in  flagrant  opposition  to  the 
decisions  of  the  Conference  of  The  Hague  he  cuts  off 
your  head.  This  distinction  between  civilized  and  savage 
warfare  was  denounced  by  M.  Raffalovich,  of  Russia,  as 
"contrary  to  the  humanitarian  spirit  which  rules  this  end 
of  the  Nineteenth  Century :  both  the  savage  and  the  civi- 
lized enemy  are  men,  and  both  deserve  the  same  treatment." 
President  Beernaert,  of  Belgium,  before  submitting  the 
prohibitory  proposition  to  a  vote,  also  said  that  he  believed 
that  he  expressed  the  opinion  of  the  subcommission  in 
asserting  that  no  distinction  should  be  made  between 
enemies  in  battles. 

Although  in  a  minority  of  one  to  nineteen  in  the  sub- 
commission,  Sir  John  Ardagh  opposed  the  adoption  of 
the  proposition  in  the  commission  itself  by  reading  an 
address,  in  part  as  follows : 

"I  ask  permission  to  present  to  this  Honorable  Assembly  some 
observations  and  explanations  on  a  subject  which  has  already  been 
submitted  to  a  vote,  that  is,  the  question  of  bullets.  In  the  session  of 
May  31,  an  article  was  accepted  by  a  large  majority  against  the  use  of 
bullets  with  a  hard  jacket,  whose  jacket  does  not  entirely  cover  the 
core  or  has  incisions  in  it. 

"It  seems  to  me  that  the  use  of  these  words  describing  technical 
details  of  construction  will  result  in  making  the  prohibition  a  little 
too  general  and  absolute.  It  would  not  seem  to  admit  of  the  excep- 
tion which  I  would  desire  to  provide  for,  that  is,  the  present  or  future 
construction  of  some  projectile  with  shock  sufficient  to  stop  the 
stricken  soldier  and  put  him  immediately  hors  de  combat,  thus  ful- 
filling the  indispensable  conditions  of  warfare  without,  on  the  other 
hand,  causing  useless  suffering. 

"The  completely  jacketed  bullet  of  our  Lee-Metford  rifle  is  defec- 
tive in  this  respect.  It  has  been  proven  in  one  of  our  petty  wars  in 
India  that  a  man  perforated  five  times  by  these  bullets  was  still 
able  to  walk  a  considerable  distance  to  an  English  hospital  to  have 


184  THE  TWO   HAGUE   CONFERENCES 

his  wounds  dressed.  It  was  proven  just  recently,  after  the  Battle  of 
Om-Durman,  that  the  large  majority  of  the  Dervishes  who  were  able 
to  save  themselves  by  flight  had  been  wounded  by  small  English  bul- 
lets, whereas  the  Remington  and  Martini  of  the  Egyptian  army  suf- 
ficed to  disable.  It  was  necessary  to  find  some  more  efficient  means, 
and  to  meet  this  necessity  in  India,  the  projectile  known  under  the 
name  of  Dumdum  was  made  in  the  arsenal  of  that  name  near 
Calcutta. 

"In  the  Dumdum  bullet,  the  jacket  leaves  a  small  end  of  the 
core  uncovered.  The  result  of  this  modification  is  to  produce  a  cer 
tain  extension  or  convexity  of  the  point  and  to  cause  a  shock  more 
pronounced  than  that  given  by  the  completely  jacketed  bullet,  but 
at  the  same  time  less  effective  than  that  given  by  the  bullet  of  the  En- 
field, Snider,  or  Martini  rifles  whose  caliber  is  larger.  The  wounds 
made  by  this  Dumdum  bullet  suffice  ordinarily  to  cause  a  shock 
which  stops  an  advancing  soldier  and  puts  him  hors  de  combat;  but 
their  result  is  by  no  means  designed  with  the  aim  of  inflicting  useless 
suffering.  .  .  . 

"It  scarcely  seems  necessary  for  me  to  assert  that  public  opinion 
in  England  would  never  sanction  the  use  of  a  projectile  which  would 
cause  useless  suffering,  and  that  every  class  of  projectile  of  this  nature 
is  condemned  in  advance;  but  we  claim  the  right  and  we  recognize 
the  duty  of  furnishing  our  soldiers  with  a  projectile  on  whose  result 
they  may  rely,  —  a  projectile  which  will  arrest,  by  its  shock,  the  charge 
of  an  enemy  and  put  him  hors  de  combat  immediately. 

"...  In  fact,  it  has  been  clearly  proven  that  our  completely 
jacketed  bullet,  such  as  is  at  present  in  use  in  the  English  army,  does 
not  sufficiently  protect  our  soldiers  against  the  charge  of  a  determined 
enemy;  hence  we  desire  to  reserve  entire  liberty  to  introduce  modifica- 
tions in  the  construction  of  either  the  jacket  or  the  core,  for  the  pur- 
pose of  causing  the  shock  necessary  for  putting  a  man  hors  de  combat, 
without  occasioning  useless  aggravation  of  suffering. 

"Such  is  our  point  of  view,  and  we  can  not,  consequently,  accept 
the  wording  of  the  prohibition  voted  by  the  majority  on  the  first 
reading,  which  imposes  a  technical  restraint  on  details  of  construc- 
tion. 

"Nevertheless,  I  desire  to  repeat  that  we  are  completely  in  accord 
with  the  humanitarian  principles  proclaimed  in  the  Convention  of 


WARFARE    ON    LAND  1S5 

St.  Petersburg,  and  that  we  shall  endeavor  to  observe  them,  not  only 
in  their  letter,  but  in  their  spirit  also,  in  seeking  a  solution  of  the 
problem  as  to  what  kind  of  projectile  we  shall  adopt.  I  can  assure 
this  Honorable  Assembly  that  it  is  very  disagreeable  to  me  to  find 
myself  obliged  to  vote,  for  the  reasons  which  I  have  just  explained, 
against  a  rule  inspired  by  principles  of  which  I  wholly  approve;  and 
I  still  cherish  the  hope  that  it  will  be  possible  to  arrive  at  a  unanimous 
agreement,  by  means  of  a  phraseology  which  shall  leave  aside  techni- 
cal details  of  construction  and  affirm  the  principles  on  which  we  are 
all  agreed,  —  the  principles  enunciated  in  the  Convention  of  St. 
Petersburg ;  that  is  to  say,  the  prohibition  of  the  use  of  bullets  whose 
effect  is  to  aggravate  uselessly  the  sufferings  of  men  placed  hors  de 
combat,  or  to  render  their  death  inevitable." 

Captain  Crozier,  of  the  United  States,  came  to  the  aid 
of  General  Ardagh  and  proposed  that  the  rule  be  phrased 
in  the  following  manner:  "The  use  of  bullets  which  in- 
flict uselessly  cruel  wounds,  such  as  explosive  bullets  and, 
in  general,  every  kind  of  bullets  which  exceed  the  limit 
necessary  for  putting  a  man  immediately  hors  de  combat, 
is  forbidden." 

Both  the  British  and  American  propositions  were 
opposed  by  the  members  of  various  delegations  on  the 
ground  that  they  were  too  vague  and  general  to  be  effec- 
tive, —  more  vague,  in  fact,  than  the  Declaration  of  St. 
Petersburg  which  had  been  issued  a  generation  before. 

The  proposition  which  had  been  voted  by  the  sub- 
commission  by  a  vote  of  nineteen  to  one,  with  one  absten- 
tion, was  then  put  to  a  vote  in  the  commission  and  adopted 
by  twenty  ayes,  two  noes  (Great  Britain  and  the  United 
States),  and  one  abstention  (Portugal).1 

When  the  proposition  was  reported  by  the  commission 
to  the  conference  in  plenary  session,  Captain  Crozier,  of 

1  The  representatives  of  China,  Luxemburg,  and  Mexico  were  not  present. 


i86  THE  TWO   HAGUE   CONFERENCES 

the  United  States,  presented  the  following  arguments 
against  its  final  adoption : 1  First,  that  it  forbade  the  use 
of  expanding  bullets,  notwithstanding  the  possibility  that 
they  might  be  made  to  expand  in  such  regular  manner  as 
to  assume  simply  the  form  of  a  larger  caliber,  which 
property  it  might  be  necessary  to  take  advantage  of,  if  it 
should  in  the  future  be  found  desirable  to  adopt  a  musket 
of  very  much  smaller  caliber  than  any  now  actually  in  use. 
Second,  that  by  thus  prohibiting  what  might  be  the  most 
humane  method  of  increasing  the  shocking  power  of  a 
bullet  and  limiting  the  prohibition  to  expanding  and  flat- 
tening bullets,  it  might  lead  to  the  adoption  of  one  of 
much  more  cruel  character  than  that  prohibited.  Third, 
that  it  condemned  by  designed  implication,  without  even 
the  introduction  of  any  evidence  against  it,  the  use  of  a 
bullet  actually  employed  by  the  army  of  a  civilized  nation. 
After  the  Russian  and  Netherlands  military  representa- 
tives had  replied  to  the  arguments  of  Captain  Crozier, 
Ambassador  White  and  Captain  Mahan,  both  of  the 
United  States,  supported  the  proposition  presented  by 
Captain  Crozier,  and  demanded  that  it  be  voted  upon 
first,  as  an  amendment  to  the  proposition  adopted  by  the 
commission.  Its  opponents  insisted  that  it  was  not  an 
"amendment,"  but  a  "new  proposition,"  and  that  there- 
fore the  former  proposition  should  be  voted  upon  first. 
This  question  of  priority  was  submitted  to  a  vote,  with  the 
result  that  seventeen  delegations  voted  in  favor  of  the  first 
proposition's  priority,  and  eight  delegations  voted  in 
favor  of  the  American  proposition's  priority.  The  former 
proposition,  as  submitted  from  the  commission,  was  ac- 

1  This  statement  is  taken  from  Captain  Crozier's  report   to   the   United 
States  delegation. 


WARFARE    ON   LAND  187 

cordingly  voted  upon,  with  the  result  that  twenty-two 
delegations  voted  in  favor  of  it,  two  delegations  (Great 
Britain  and  the  United  States)  voted  against  it,  and  one 
(Portugal)  abstained  from  voting,  while  Luxemburg's 
delegation  was  not  present. 

The  final  declaration  adopted  by  the  conference,  after 
a  long  and  animated  debate  upon  it  in  subcommission, 
commission,  and  plenary  session,  was  in  the  form  of  the 
original  proposition,  and  was  signed  by  representatives 
of  all  of  the  twenty-six  powers,  with  the  exception  of 
Great  Britain,  the  United  States,  and  Portugal.1 

b.   The  Conference  of  1907 
Bullets 

The  Russian  programme  for  this  conference  mentioned, 
among  the  topics  connected  with  warfare  on  the  land : 
"Declarations  of  1899.  One  among  them  having  expired, 
question  of  its  renewal." 

At  the  second  meeting  of  the  first  subcommission  of 
the  II  Commission,  on  July  10,  1907,  General  Davis, 
of  the  United  States,  presented  the  following  propo- 
sition:  "The  use  of  bullets  which  inflict  unnecessarily 
cruel  wounds,  such  as  explosive  bullets,  and,  in  general, 
every  kind  of  bullet  which  exceeds  the  limit  necessary  for 
putting  a  man  immediately  hors  de  combat,  should  be  for- 
bidden." 

At  the  last  meeting  of  the  subcommission,  August  7, 
after  the  other  work  assigned  to  it  had  been  finished,  its 
president,    M.    Beernaert,    of    Belgium,    stated    that    the 

1  The  British  and  Portuguese  delegations  in  the  Conference  of  1907  an 
nounced  the  adhesion  of  their  governments  to  this  declaration. 


1 88  THE   TWO   HAGUE   CONFERENCES 

Convention  of  1899  had  been  completed  by  two  other 
declarations,  one  relative  to  the  prohibition  of  bullets 
which  expand  in  the  human  body,  and  the  other  dealing 
with  the  prohibition  of  asphyxiating  projectiles;  and  that 
no  one  had  demanded  the  revision  of  these  two  declara- 
tions. 

Lord  Reay,  of  Great  Britain,  then  announced  that  his 
government,  which  did  not  sign  the  latter  declaration, 
would  give  in  its  adhesion  to  it  that  day. 

The  president,  after  expressing  his  gratification  for  this 
adhesion,  passed  to  the  declaration  concerning  bullets. 
He  expressed  his  opinion  that  all  discussion  on  the  subject 
of  this  declaration  should  be  held,  as  in  the  case  of  the 
preceding  one,  inadmissible ;  that  these  two  declarations, 
having  been  concluded  for  an  indefinite  term,  can  be  de- 
nounced only  on  condition  of  notice  given  one  year  in  ad- 
vance, and  that  no  power  had  expressed  such  an  intention ; 
that,  moreover,  the  modification  or  abrogation  of  these 
declarations  does  not  figure  on  the  programme,  and  that 
the  restrictive  proposition  of  the  United  States,  likewise, 
is  not  a  part  of  it. 

These  observations  of  the  president  encountered  no 
contradiction ;  and  after  the  British  and  Portuguese  rep- 
resentatives had  announced  that  their  respective  delegations 
would  sign  the  declaration  prohibiting  the  use  of  bullets 
which  expand  or  flatten  easily  in  the  human  body,  and  the 
president  had  congratulated  the  conference  "on  these  pre- 
cious adhesions,"  the  subcommission  adjourned  sine  die. 

The  adhesion  of  Great  Britain  and  Portugal  to  the  dec- 
laration of  1899  concerning  bullets  left  the  United  States 
delegation  alone  to  contend  for  its  view  of  the  matter.  It 
did  not  shirk  what  it  considered  to  be  its  duty,  and  at  the 


WARFARE    ON   LAND  1 89 

meeting  of  the  II  Commission  on  the  8th  of  August,  Gen- 
eral Davis  recalled  some  of  the  facts  above  mentioned,  and 
made  the  following  statement : 

"In  view  of  these  facts,  the  United  States  delegation  finds  it 
difficult  to  understand  'that  no  one  has  demanded  the  revision  of  these 
two  declarations.'  Its  desire  in  submitting  its  proposition  of  July 
8  was  to  secure  consideration  for  it  by  the  commission. 

"In  the  minutes  of  July  31,  there  was  given  an  interpretation  to  the 
programme,  an  interpretation  which  the  delegation  of  the  United  States, 
to  its  great  regret,  can  not  accept;  the  interpretation,  namely,  that  the 
declarations  of  1899  can  be  modified  only  at  the  suggestion  of  a  power 
which  has  denounced  them.  The  government  of  the  United  States 
is  not  one  of  the  signatories  of  the  third  declaration,  and  hence  is 
not  in  a  position  to  denounce  it  in  the  manner  and  form  prescribed 
in  the  convention.  .  .  . 

"In  conclusion,  I  address  myself  especially  to  the  delegates  who 
bear  officers'  commissions  in  the  armies  of  the  nations  represented 
here.  You  are  familiar  with  the  whistling  of  bullets,  you  are  accus- 
tomed to  the  sight  of  the  dead  and  wounded.  We  have  regulated  the 
operations  of  warfare,  we  have  improved  the  condition  of  neutrals: 
these  are  acts  of  high  justice;  but  we  should  not  forget  the  combatant 
officers  and  simple  soldiers  who  bear  the  burdens  of  warfare.  I  hope 
that  this  conference,  convoked  in  the  name  of  humanity,  will  not  for- 
get the  lot  of  those  who  bear  the  inevitable  losses  and  the  cruelties 
of  battles. 

"The  duty  of  the  delegation  of  the  United  States  has  been  fulfilled ; 
the  duty  of  the  conference  commences  at  the  point  where  that  of  the 
delegation  ends." 

M.  Beernaert,  of  Belgium,  who  was  president  of  the  II 
Commission,  as  well  as  of  its  first  sub-commission,  replied 
that  General  Davis's  remarks  would  be  placed  upon  the 
record,  but  said  that  the  question  raised  by  him  had  been 
placed  before  the  commission  [really,  the  subcommission], 
and  that  no  one  had  opposed  the  solution  which  it  had  re- 
ceived.   He  ruled  that  the  question  was  no  longer  open  for 


190 


THE   TWO   HAGUE   CONFERENCES 


discussion,  and  expressed  the  opinion  that  in  other  respects 
also  it  had  been  well  settled.  The  programme  prepared 
for  the  conference  more  than  a  year  ago  by  the  Russian 
government,  he  asserted,  included  the  regulation  of  warfare 
and  the  renewal  of  the  declaration  relative  to  balloons; 
but  no  proposition  was  made  as  to  the  two  other  declara- 
tions, and  no  power  had  denounced  them;  hence  they 
retain  their  obligatory  force  for  one  year  or  more.  In  re- 
gard to  General  Davis's  proposition  itself,  M.  Beernaert 
said,  in  conclusion,  that  it  was  identical  with  the  one  pre- 
sented by  Captain  Crozier  in  1899,  which  was  then  unani- 
mously rejected  as  insufficient ;  and  that  Captain  Crozier 
himself  then  signed  the  declaration  in  its  present  form.1 

The  commission  then  adjourned,  and  the  question  of 
bullets  was  not  taken  up  again. 

B.   THE   GENEVA   CONVENTION   OF    1864 

a.   The  Conference  of  1899 

When  the  II  Commission  was  assigning  its  tasks  to  the 
consideration  of  its  two  subcommissions,  a  debate  occurred 
as  to  the  competence  of  the  conference  to  revise  the  con- 
vention adopted  at  Geneva  in  1864  for  the  regulation  of 
warfare  on  the  land.  M.  Odier,  of  Switzerland,  took  the 
view  that  it  would  be  better  to  refer  the  revision  to  a  special 
conference,  in  which  medical  and  sanitary  experts,  and 
representatives  of  all  the  powers  which  had  signed  the 
convention,2  might  be  present.    This  view  was  adopted 

1  The  last  two  of  these  statements  were  incorrect,  — ■  according  to  the 
official  record  of  1899. 

2  All  of  these  powers  were  represented  in  the  Conference  of  1 899 ;  but  some 
of  the  minor  German  states  which  were  independently  represented  in  1864 
were  represented  in  1899  by  delegates  from  the  German  Empire. 


WARFARE    ON   LAND 


191 


by  the  commission,  although  the  sentiment  was  expressed 
by  M.  Asser,  of  the  Netherlands,  that  the  existing  conference 
would  have  the  right,  even  though  it  might  be  deemed  in- 
expedient to  exert  the  right,  of  revising  the  said  conven- 
tion. 

M.  Asser,  as  president  of  the  subcommission  which  dealt 
with  the  application  of  the  Geneva  rules  to  maritime  war- 
fare, proposed  to  the  subcommission  the  adoption  of  the 
following  desire  (vceu) : 

"The  Conference  of  The  Hague,  taking  into  consideration  the  pre- 
liminary measures  initiated  by  the  federal  government  of  Switzerland 
for  the  revision  of  the  Convention  of  Geneva,  expresses  the  desire 
that,  after  a  short  interval,  there  shall  be  convoked  a  special  confer- 
ence, whose  object  shall  be  the  revision  of  the  said  convention." 

When  this  desire  was  reported  to  the  commission,  M. 
Beldiman,  of  Roumania,  moved  to  add,  after  the  words 
"a  short  interval,"  the  words  "and  under  the  auspices  of 
the  Swiss  Federal  Council."  In  making  this  motion,  he 
recalled  that  Switzerland  has  acquired  an  imperishable 
claim  to  the  gratitude  of  the  civilized  world  for  all  that 
concerns  the  establishment  and  development  of  the  Red 
Cross,  and  suggested  that  just  homage  would  be  rendered 
to  Switzerland  by  the  adoption  of  his  amendment. 

The  commission's  president,  M.  de  Martens,  of  Russia, 
said  that  it  would  impose  a  burden  upon  the  Swiss  govern- 
ment to  decide  that  it  alone  had  the  right  of  convoking  the 
Conference  of  Revision ;  and  he  cited  a  precedent  of  1892 
to  show  that  Switzerland  had  not  always  taken  precedence 
in  regard  to  the  Red  Cross  movement.  M.  Asser,  of  the 
Netherlands,  and  Sir  Julian  Pauncefote,  of  Great  Britain, 
supported  M.  de  Martens's  view,  while  representatives  of 
Germany,  Japan,  and  Italy  supported  M.  Beldiman's  mo- 


192  THE   TWO   HAGUE   CONFERENCES 

tion.  M.  Odier,  of  Switzerland,  said  that,  while  he  agreed 
entirely  with  the  view  that  his  government  could  not  claim 
to  monopolize  the  convocation  of  the  proposed  conference, 
yet,  since  the  idea  of  the  Convention  of  Geneva  had  been 
born  in  his  country,  he  considered  that  up  to  a  certain  point 
it  had  an  interest  and  a  particular  right  to  take  the  initiative 
in  all  that  pertains  to  that  convention. 

After  this  rather  unpleasant  discussion,  M.  Beldiman's 
amendment  was  put  to  a  vote,  with  the  result  that  thirteen 
delegations  voted  for  it,  twelve  delegations  abstained  from 
voting,  and  one  delegation  (that  of  the  United  States)  voted 
against  it.  The  desire  as  presented  by  M.  Asser  was  then 
passed  by  a  vote  of  twenty-two  ayes  and  four  abstentions. 

At  the  next  meeting  of  the  commission,  Captain  Mahan 
said  that  the  delegation  of  the  United  States  had  received 
instructions  from  its  government  to  vote  for  the  amendment 
offered  by  M.  Beldiman,  and  that  it  desired,  therefore,  to 
change  its  negative  vote  to  an  affirmative  one.  M.  Beldi- 
man thereupon  said  that  his  amendment  had  been  adopted 
by  a  majority  vote ;  but  that  in  the  interest  of  unanimity, 
he  would  move  that  the  desire  as  presented  to  the  com- 
mission should  be  recommended  to  the  conference  in  ple- 
nary session,  with  the  further  declaration  that  all  the  states 
represented  at  The  Hague  would  be  happy  to  see  the  Fed- 
eral Council  of  Switzerland  take  the  initiative,  after  a  short 
interval,  in  convoking  the  proposed  Conference  of  Revision. 

Ambassador  White,  of  the  United  States,  announced  that 
the  negative  vote  cast  by  his  delegation  at  the  last  meeting 
had  been  the  result  of  a  misunderstanding,  and  that  the 
American  government  had  the  liveliest  desire  to  do  justice 
to  Switzerland,  which  had  taken  the  initiative  in  developing 
this  great  humanitarian  idea ;  he  would  vote,  therefore,  for 


WARFARE   ON   LAND  193 

M.  Beldiman's  motion.  This  motion  was  then  adopted 
unanimously,  on  the  understanding,  as  expressed  by  the 
commission's  president,  that  no  nation  was  bound  in  any 
way  by  the  adoption  of  the  motion,  and  that  no  mandate 
was  laid  upon  Switzerland  by  it. 

The  conference  in  plenary  session  approved  unanimously, 
and  without  discussion,  of  the  commission's  recommenda- 
tion. 

The  laws  and  customs  of  warfare  on  land,  adopted  by  the 
conference,  included  the  provision  that  the  obligations  of 
belligerents  with  regard  to  the  sick  and  wounded  are  gov- 
erned by  the  Geneva  Convention  of  August  22,  1864,  sub- 
ject to  any  modifications  which  may  be  introduced  into  it.r 

b.   The  Revision  of  1906 2 

Although  the  Geneva  Convention  was  revised  by  a  spe- 
cial conference  in  1906,  and  not  by  the  Peace  Conference 
of  1907,  it  seems  appropriate  to  give  a  brief  account  of  the 
revision  in  this  place.  For  not  only  was  the  special  con- 
ference of  revision  inspired  largely  by  the  first  Peace  Con- 
ference, but  the  revision  itself  became  the  basis  of  the  work 
of  the  second  Peace  Conference  in  its  further  adaptation  of 
the  Geneva  Convention  to  naval  warfare. 

The  Swiss  Federal  Government  issued  the  invitations 
and  the  proposed  programme  for  the  conference,  which 
met  in  Geneva  from  the  nth  of  June  to  the  6th  of  July, 
1906.     Thirty-four  of  the  thirty-nine  independent  countries 

1  Article  21.     For  this  code  of  laws,  see  later,  page  213. 

2  The  following  account  is  based  upon  the  official  report  of  the  conference, 
published  by  the  Swiss  government  in  Geneva  in  1906,  and  entitled  "  Actes 
de  la  Conference  de  Revision  reunie  a  Geneve  du  11  Juin  au  6  Juillet  1906  " 
(one  volume,  311  pages,  folio). 


ig4  THE  TWO   HAGUE   CONFERENCES 

which  had  signed  the  Convention  of  Geneva,  and  two 
others,  were  represented  in  the  conference  by  seventy- 
nine  members,  who  were  about  equally  divided  between 
the  diplomatic,  military,  and  medical  professions. 

The  convention  adopted  by  this  conference  bears  the 
date  of  July  6,  1906,  and  takes  the  place  of  the  Convention 
of  1864.  It  contains  thirty-three  articles,  instead  of  the 
original  ten.  The  most  important  amendments  and  addi- 
tions adopted  are  as  follows : 

Not  only  soldiers  (militaires),  but  also  "other  persons 
officially  connected  with  the  armies,"  are  now  to  be  cared 
for,  when  sick  or  wounded,  by  the  victorious  army. 

Sick  and  wounded,  in  the  hands  of  the  enemy,  are  now 
considered  prisoners  of  war;  but  belligerents  are  left  free 
to  make  mutual  agreements  to  exchange  such  prisoners, 
to  return  to  their  own  country  those  whom  they  do  not  de- 
sire to  retain,  or  to  send  them  to  a  neutral  country,  with  the 
latter's  consent,  to  be  confined  until  the  end  of  hostilities. 

The  victorious  army  is  required  to  take  measures  to 
seek  out  the  wounded  on  the  field  of  battle,  and  to  protect 
them  against  pillage  and  ill  treatment.  This  protection 
must  be  extended  to  the  dead  also,  who  are  not  mentioned 
in  the  Convention  of  1864;  and  before  they  are  buried  or 
cremated,  bodies  must  be  carefully  examined  for  any 
remnant  of  life. 

Belligerents  are  required  to  inform  each  other  of  the 
marks  of  identity  found  on  the  dead,  and  of  the  etat  nomi- 
natif  (name,  regiment,  company,  etc.)  of  the  sick  or 
wounded  received  by  them.  They  must  keep  each  other 
informed  of  burial,  death,  and  reception  in  hospitals  of  the 
sick  and  wounded  in  their  power.  They  must  receive  the 
personal  property,  letters,  etc.,  found  on  the  field  of  battle, 


WARFARE   ON   LAND  195 

or  left  by  those  who  die  in  hospitals,  and  return  them 
through  official  means  to  those  who  have  an  interest  in 
them. 

The  Convention  of  1864  provided  that  "every  wounded 
soldier  received  and  cared  for  in  a  house  shall  protect  it ; 
and  inhabitants  who  receive  sick  and  wounded  in  their 
homes  shall  be  exempt  from  lodging  troops  and  from  a  por- 
tion of  the  military  contributions  which  may  be  imposed." 
This  was  regarded  by  the  Conference  of  1906  as  an  incen- 
tive to  fraud  and  deception  on  the  part  of  such  inhabitants, 
and  a  source  of  just  criticism  of  the  convention  itself. 
It  therefore  substituted  the  rule  that  "the  military  authority 
may  appeal  to  the  charitable  zeal  of  the  inhabitants  to  re- 
ceive and  care  for  the  sick  and  wounded,  under  its  own 
control,  and  to  accord  to  those  who  respond  to  this  appeal 
a  special  protection  and  certain  immunities." 

Movable,  as  well  as  immovable,  hospitals  are  now  to  be 
protected  by  belligerents,  provided  they  are  not  used  to 
commit  acts  injurious  to  the  enemy;  and  such  acts  are,  by 
a  process  of  exclusion,  carefully  defined. 

The  Convention  of  1864  provided  that  the  personnel  of 
hospitals  and  ambulances  shall  participate  in  the  benefits 
of  neutrality  when  they  are  performing  their  duties  as  care- 
takers of  the  sick  and  wounded.  The  Convention  of  1906 
provided  that  such  personnel,  if  assigned  exclusively  to 
such  duties,  shall  be  protected  under  all  circumstances ; 
and  that  if  they  fall  into  the  hands  of  the  enemy,  they  shall 
not  be  treated  as  prisoners  of  war. 

Voluntary  associations  for  the  aid  of  sick  and  wounded 
soldiers,  such  as  the  Red  Cross  societies  of  to-day,  were 
in  their  infancy  in  1864,  when  the  Convention  of  Geneva 
was  adopted,  and  the  character  and  results  of  their  opera- 


196  THE  TWO   HAGUE   CONFERENCES 

tions  could  not  be  certainly  foreseen ;  hence  they  were  not 
recognized  by  that  convention,  or  by  the  additional  articles 
of  1868.  But  these  societies  have  proven  their  efficiency 
and  helpfulness  in  such  a  striking  manner  during  the  wars 
of  the  last  generation,  that  the  Conference  of  1906  gladly 
recognized  them,  and  provided  that,  if  duly  recognized 
and  authorized  by  their  own  governments,  their  agents 
should  share  the  same  protection  and  privileges  as  are 
accorded  to  the  hospital  personnel  of  the  governments 
themselves.  Before  they  begin  operations,  however,  their 
names  should  be  notified  by  their  respective  governments 
to  each  other;  and  their  agents  on  the  field  of  battle  are 
subjected  to  military  laws  and  regulations.  Such  a  society, 
belonging  to  a  neutral  country,  can  not  participate  in  the 
work  of  caring  for  the  sick  and  wounded  of  a  belligerent 
without  the  definite  consent  of  its  own  government  and  the 
authorization  of  the  belligerent  as  well ;  and  the  belliger- 
ent which  accepts  of  an  offer  of  such  services  must  notify 
its  opponent  of  that  fact  before  the  services  are  rendered. 

All  sanitary  officials  who  fall  into  the  enemy's  hands 
must  not  be  treated  as  prisoners  of  war,  but  may  continue 
to  perform  their  duties  under  the  enemy's  direction  and 
with  his  compensation.  When  their  services  are  no  longer 
indispensable,  they,  together  with  their  private  property, 
instruments,  arms,  and  horses,  are  to  be  returned  to  their 
own  army  or  country,  as  soon  as  military  necessities  permit. 

The  Convention  of  1864  contained  the  broad  provision 
that  "evacuations,  together  with  the  persons  directing  them, 
shall  be  covered  by  an  absolute  neutrality."  This  protec- 
tion is  recognized  by  the  Convention  of  1906,  but  under 
limitations  designed  to  give  greater  freedom  to  military 
operations;    for  example,   "a  belligerent,   intercepting  a 


WARFARE   ON   LAND  197 

convoy  of  evacuation,  may  arrest  it,  if  military  necessities 
demand,  provided  that  he  take  care  of  the  sick  and  wounded 
which  it  convoys." 

The  "red  cross  on  a  white  ground,"  adopted  as  the  dis- 
tinctive emblem  of  hospitals,  etc.,  in  1864,  was  retained  in 
1906;  but,  in  order  to  emphasize  the  fact  that  the  use  has 
only  a  humanitarian,  and  not  necessarily  a  religious,  theo- 
logical, or  ecclesiastical  significance,  the  rule  was  stated  as 
follows:  "Out  of  respect  to  Switzerland,  the  heraldic  sign 
of  the  red  cross  on  a  white  ground,  formed  by  the  inversion 
of  the  federal  colors,  is  retained  as  the  emblem  and  dis- 
tinctive sign  of  the  sanitary  service  of  armies."  This  em- 
blem is  to  figure  on  the  flags,  arm  bands,  and  all  the  ma- 
terial belonging  to  the  sanitary  service.  It  is  to  be  worn 
on  an  arm  band  on  the  left  arm,  by  the  agents  of  the  sani- 
tary service,  who  are  to  carry  also  a  certificate  of  identifica- 
tion ;  both  the  arm  band  and  certificate  are  to  be  supplied 
and  stamped  by  the  competent  military  authority. 

The  distinctive  flag  of  the  Red  Cross  can  be  hoisted 
over  only  sanitary  establishments  and  with  the  consent  of 
the  military  authority.  It  should  be  accompanied  by  the 
national  flag  of  the  belligerent  to  whom  the  establishment 
belongs.  But  if  military  hospitals  fall  into  the  hands  of 
the  enemy,  they  should  hoist  no  other  flag  than  that  of  the 
Red  Cross,  so  long  as  they  are  in  such  situation.  The 
sanitary  establishments  of  neutrals  should  hoist,  with  the 
flag  of  the  convention,  the  national  flag  of  the  belligerent 
with  whom  they  take  service ;  and  if  they  fall  into  the 
enemy's  hands,  they  should  hoist  only  the  convention's 
flag,  so  long  as  they  are  in  such  situation. 

The  emblem  of  the  red  cross  on  a  white  ground,  and  the 
words  Red  Cross  or  Cross  of  Geneva,  can  be  employed 


198  THE   TWO   HAGUE   CONFERENCES 

whether  in  time  of  peace  or  in  war  time,  only  to  protect 
or  to  designate  the  sanitary  establishments,  their  personnel 
and  equipment,  which  are  protected  by  the  convention. 
The  signatory  governments  undertake  to  pass,  or  propose 
to  their  legislatures,  laws  sufficient  to  prevent  at  all  times 
the  said  emblem  and  words  from  being  used  by  individuals 
or  societies  other  than  those  to  whom  the  convention  gives 
the  right  of  so  doing.  This  agreement  was  adopted  for  the 
expressed  purpose  of  preventing  a  commercial  use  of  the 
red  cross  emblem  or  words  as  a  mark  of  manufacture  or 
trade ;  and  it  was  agreed  that  if  the  several  governments  did 
not  secure  requisite  legislation  for  this  purpose,  the  con- 
vention itself  would  be  held  to  prohibit  as  illegal  such  use 
of  the  emblem  and  words. 

Although  there  was  a  good  deal  of  debate  over  the 
adoption  of  the  thirty-three  articles  of  the  convention,  the 
delegates  from  all  the  countries  represented  signed  them 
all,  with  the  exception  of  the  three  which  forbade  the  use 
of  the  red  cross  emblem  and  words  for  any  other  purpose 
than  that  recognized  by  the  convention.  The  British 
delegation  alone  withheld  their  signatures  from  these 
three  articles,  and  they  did  so  for  the  twofold  reason  that 
five  or  six  years  are  necessary  in  Great  Britain  to  pass  a  law, 
even  a  popular  one,  and  that  they  were  unwilling  to 
promise  that  their  government  should  undertake  to  pass 
any  law. 

There  was  one  other  measure  adopted  by  the  conference 
which  lacked  unanimity.  This  was  not  an  article  of  the 
convention,  but  was  the  expression  of  the  following  desire 
(vosu) : 

"The  conference  expresses  the  desire  that,  for  the  purpose  of 
securing  an  interpretation  and  application  as  exact  as  possible  of  the 


WARFARE   ON   LAND  199 

Convention  of  Geneva,  the  contracting  powers  shall  submit  to  the 
Permanent  Court  at  The  Hague,  if  the  cases  and  circumstances 
admit  of  such  a  procedure,  the  differences  which,  in  time  of  peace, 
may  arise  between  them  in  regard  to  the  interpretation  of  the  said 
convention." 

The  original  of  this  proposition  was  made  in  the  name  of 
the  government  of  Russia  by  Professor  de  Martens;  it 
was  amended  by  M.  von  Bulow,  of  Germany;  and  was 
supported  by  a  number  of  delegates  from  other  countries. 
M.  von  Bulow  expressed  the  prevailing  sentiment  in  the 
words : 

"I  am  convinced  that  we  can  all  adhere  to  this  vczu,  and  thus 
give  to  the  world  a  fine  proof  of  concord  and  harmony  at  the  end  of 
our  humanitarian  task.  The  Convention  of  Geneva  and  that  of  The 
Hague  are  sisters,  destined  to  walk  together  along  the  path  of  civili- 
zation towards  the  triumph  of  justice  and  humanity." 

All  of  the  thirty-six  delegations  present  in  the  conference 
voted  for  this  vceu,  with  the  exception  of  those  of  Corea, 
Great  Britain,  and  Japan. 

C.   THE   RIGHTS   AND    DUTIES   OF   NEUTRALS 

a.    The  Conference  of  1899 

When  the  laws  and  customs  of  warfare  on  land  were 
under  discussion  in  the  military  subcommission  of  the  II 
Commission,  and  the  question  of  belligerents  harbored  by 
neutrals  came  up  for  consideration,  M.  Eyschen,  of  Luxem- 
burg, seized  the  opportunity  to  emphasize  the  indefinite 
status  of  the  rights  and  duties  of  neutrals  in  international 
law.  He  asserted  that  a  precise  definition  of  these  rights 
and  duties  would  be  to  the  advantage  of  both  neutrals  and 
belligerents,  and  would  facilitate  the  task  in  war  time  of 


200  THE   TWO    HAGUE   CONFERENCES 

governments,  parliaments,  the  press,  and  of  every  one  else 
concerned. 

A  number  of  delegates  gave  hearty  support  to  the  im- 
portance and  necessity  of  the  task  indicated  by  M.  Eyschen, 
and  the  subcommission  requested  him  to  lay  before  it  a 
statement  of  the  precise  points  which  might  be  considered 
by  it  with  a  definite  result. 

M.  Eyschen  performed  this  task  at  the  next  meeting, 
and  in  justification  of  the  initiative  which  he  as  a  representa- 
tive of  Luxemburg  had  taken  in  the  matter,  spoke  of  the 
peculiar  situation  in  which  Luxemburg  had  been  placed 
by  the  Treaty  of  London  of  1867.  "That  treaty,"  he 
said,  "had  desired  to  relieve  Luxemburg  of  its  former 
strategic  importance.  It  decreed  that  Luxemburg  should 
cease  to  be  fortified ;  that  from  being  a  fortress  it  should 
be  converted  into  an  open  place ;  that  its  fortifications 
should  not  be  restored  in  the  future ;  and  that  there 
should  be  neither  maintained  nor  created  in  it  any  military 
establishment  whatever.  The  country  itself  can  have 
only  the  number  of  troops  necessary  to  preserve  good 
order." 

The  subcommission  was  again  greatly  impressed  by  the 
importance  of  the  subject  thus  introduced ;  but,  on  con- 
sideration, it  shared  the  doubts  of  President  de  Martens 
as  to  the  possibility  of  accomplishing  in  a  few  weeks  a  task 
which  the  most  eminent  jurisconsults,  like,  for  example, 
those  of  the  Institute  of  International  Law,  had  been  unable 
to  accomplish  in  the  course  of  a  quarter  century.  It  adopted 
unanimously,  however,  the  desire  (vceu)  that  "the  question 
of  the  rights  and  duties  of  neutrals  be  inscribed  on  the  pro- 
gramme of  the  next  conference."  This  desire  was  adopted 
unanimously  and  without  discussion  by  the  commission  and 


WARFARE    ON   LAND  201 

the  conference  in  plenary  session;  and  the  only  phases 
of  the  question  which  were  discussed  and  settled  by  the 
first  conference  had  to  do  with  the  relation  of  belliger- 
ents in  occupied  territory  to  the  property  of  railways  com- 
ing into  that  territory  from  neutral  states,  and  with  the 
relation  of  neutral  states  to  sick  and  wounded  belligerents 
received  within  their  territory.  These  rules,  five  in  num- 
ber, are  given  together  with  the  rules  regarding  neutral 
rights  and  duties  which  were  adopted  by  the  Conference 
of  1907. 

b.   The  Conference  of  1907 

In  compliance  with  the  desire  of  the  Conference  of  1899, 
the  Russian  government  placed  upon  its  programme  for 
1907  the  elaboration  of  a  convention  stating  the  rights  and 
duties  of  neutrals  on  land.  The  subject  was  brought  for- 
ward in  a  proposition  containing  four  articles  by  the  French 
delegation,  and  General  Amourel,  of  that  delegation,  in 
presenting  it  said  that  it  did  not  of  course  provide  for 
everything  needed,  and  that  the  powers  would  be  obliged 
to  add  to  it  some  regulations  determining  all  the  conditions 
in  which  they  expected  to  exercise  their  neutrality;  but 
that  the  adoption  of  the  proposed  rules  would  afford  a  point 
of  departure,  a  definite  basis,  the  same  for  all  powers,  well 
known  in  advance,  and  having  the  great  advantage  of 
originating  in  a  free  and  calm  discussion. 

The  convention  which  was  adopted  as  the  result  of  this 
discussion  is  divided  into  two  parts :  first,  the  rights  and 
duties  of  neutral  states,  in  relation  to  belligerents  in  time  of 
war;  and,  second,  the  rights  and  duties  of  the  citizens  of 
neutral  states  residing  within  belligerent  territory. 


202      THE  TWO  HAGUE  CONFERENCES 

i.     The  Rights  and  Duties  of  Neutral  States 

The  first  article  adopted  was  the  fundamental  assertion 
that  the  territory  of  neutral  states  is  inviolable.  This  was 
adopted  unanimously,  and  was  intended  to  emphasize  the 
fact  that  neutrals  have  most  important  rights,  in  relation 
to  belligerents,  as  well  as  duties. 

In  pursuance  of  this  fundamental  idea,  certain  acts  are 
first  forbidden  to  belligerents,  and  then  it  is  stated  that  a 
neutral  power  should  not  tolerate  their  performance  on  its 
own  territory.  These  acts  are :  first,  to  convey  across 
a  neutral's  territory  troops  or  convoys  either  of  munitions 
or  provisions;  second,  to  install  on  a  neutral's  territory  a 
radio-telegraphic  station,  or  any  other  apparatus  designed 
to  serve  as  a  means  of  communication  with  belligerent 
forces  on  land  or  sea ;  third,  to  make  use  of  any  plant  of 
the  kind  just  mentioned  established  by  belligerents  before 
the  war  on  a  neutral's  territory  for  an  exclusively  military 
purpose  and  not  opened  to  the  service  of  the  public ;  and 
fourth,  to  form  corps  of  combatants  or  open  offices  of 
enrollment  for  the  advantage  of  belligerents  on  a  neutral's 
territory. 

While  stating  that  the  above  acts  should  not  be  tolerated 
by  a  neutral  power,  the  convention  proceeds  to  define  care- 
fully the  neutral's  responsibility  in  regard  to  them.  A 
neutral  power  is  required  to  punish  acts  contrary  to  neu- 
trality only  when  such  acts  have  been  committed  on  its 
own  territory ;  it  is  not  responsible  for  the  passage  of  indi- 
viduals, separately,  across  its  frontier  for  the  purpose  of 
enlisting  in  the  service  of  one  of  the  belligerents ;  it  is  not 
required  to  prevent  the  exportation  or  transit,  on  account 
of  either  of  the  belligerents,  of  arms,  munitions,  or  anything 


WARFARE   ON   LAND 


203 


which  may  be  useful  to  an  army  or  a  fleet;  and  it  is  not 
required  to  prohibit  or  restrict  the  use,  for  belligerents,  of 
telegraph  or  telephone  systems,  or  of  wireless  telegraph 
stations,  whether  they  be  the  property  of  the  neutral  state 
itself  or  of  private  companies  or  individuals.  The  neutral 
power  may  impose  restrictions  or  prohibitions  upon  the 
exportation  of  arms,  etc.,  to  belligerents,  and  upon  the  use 
by  them  of  telegraph  systems,  etc. ;  but  it  is  expected  to 
apply  such  restrictions  or  prohibitions  impartially  to  each 
belligerent,  and  to  require  private  companies  or  individuals 
owning  telegraphic  and  telephonic  systems  to  apply  regu- 
lations impartially  to  each  belligerent. 

The  convention  not  only  admits  the  right  of  a  neutral 
power  to  repel  attacks  upon  its  neutrality,  even  by  force,  if 
necessary,  but  also  expressly  states  that  such  repulsion 
can  not  be  considered  a  hostile  act. 

These  important  rules  were  not  adopted  without  debate. 
The  limitation  of  a  neutral's  responsibility  to  acts  com- 
mitted within  its  own  territory  was  opposed  as  being  insuf- 
ficient. The  Japanese  delegation  desired  to  substitute  for 
this  the  words  under  its  jurisdiction,  so  that  it  could  be 
held  responsible  for  acts  committed  within  lands  under  its 
protection,  —  that  is,  in  so-called  "protectorates,"  such  as, 
for  example,  Manchuria  before  the  recent  Russo-Japanese 
War.  The  Turkish  delegation  desired  to  make  the  neutral 
state  responsible  for  the  emigration  of  individuals  who, 
just  beyond  the  neutral  frontier,  should  form  a  military 
organization  for  the  purpose  of  participating  in  the  war. 
The  German  delegation  desired  to  require  neutral  states 
to  prohibit  their  citizens  from  enlisting  for  service  in  the 
armies  of  either  belligerent.  But  the  commission  rejected 
all   of   these    restrictions    on    neutral    rights,  and    made 


204 


THE   TWO   HAGUE   CONFERENCES 


neutral  states  responsible  only  for  acts  committed  within 
their  own  territories.  It  did,  however,  concede  that  their 
responsibility  extended  to  acts  committed  within  their  own 
territories  by  aliens,  as  well  as  by  citizens ;  and  it  informally 
approved  the  assertion  that,  so  far  as  "protectorates"  were 
concerned,  "the  material  reality  of  facts  alone  can  supply 
a  criterion  for  determining  the  neutral  state  virtually  re- 
sponsible and  the  extent  of  its  responsibility." 

The  commission  rejected  the  Japanese  and  British  prop- 
osition to  require  neutral  states  to  restrict  or  prohibit  the 
use,  for  belligerents,  of  telegraphic  or  telephonic  means 
of  communication ;  it  did  so  for  the  reason  that  no  argu- 
ment based  on  principle  was  advanced  in  support  of  such 
a  requirement,  while  arguments  of  a  practical  nature, 
such  as  interference  with  the  privacy  and  rapidity  of  such 
communication,  were  advanced  against  it.  On  motion 
of  Lord  Reay,  of  Great  Britain,  however,  the  commission 
did  adopt  the  principle  that  the  liberty  of  a  neutral  state 
to  transmit  dispatches  by  means  of  its  telegraphic  systems 
on  land,  its  submarine  cables,  or  its  radio-telegraphic  ap- 
paratus, does  not  imply  the  faculty  of  using  them  or  per- 
mitting their  use  to  lend  manifest  assistance  to  one  of  the 
belligerents. 

The  relation  of  neutral  states  towards  belligerents  ad- 
mitted within  their  territories,  and  towards  the  sick  and 
wounded,  is  carefully  defined.1  A  neutral  power  which 
receives  within  its  territory  belligerent  troops  should  assign 
them  a  place  of  residence  as  far  as  possible  from  the  seat 
of  war ;  it  can  keep  them  in  camps,  and  even  confine  them 
within  fortresses  or  in  places  suitable  to  the  purpose ;  it 

1  Four  of  the  five  articles  regulating  this  matter  were  adopted  in  1899, 
under  the  Laws  and  Customs  of  Warfare  on  Land. 


WARFARE    ON   LAND  205 

will  decide  whether  or  not  officers  may  be  set  at  liberty 
on  promise  not  to  leave  the  neutral  territory  without  au- 
thorization ;  in  default  of  a  special  treaty,  it  will  supply 
such  belligerents  with  food,  clothing,  and  such  comforts 
as  humanity  prescribes ;  and  it  shall  receive  compensation 
for  its  expenses  after  peace  is  made. 

As  to  prisoners  of  war,  it  is  provided1  that  a  neutral 
power  which  receives  prisoners  of  war  who  have  escaped 
from  captivity  must  leave  them  at  liberty,  but  can  assign 
them  a  residence,  if  it  tolerates  their  stay  within  its  territory ; 
and  the  same  rule  applies  to  prisoners  of  war  who  are 
brought  into  neutral  territory  by  troops  taking  refuge  there. 

The  sick  and  wounded  soldiers  of  belligerent  armies 
may  be  authorized  by  a  neutral  power  to  be  brought  within 
its  territory,  on  condition  that  neither  personnel  nor  ma- 
terial of  war  be  brought  in  with  them ;  and  whether  they 
are  brought  in  by  their  own  side  or  by  their  enemy,  they 
should  be  prevented  by  the  neutral  power  from  taking 
part  again  in  the  operations  of  the  war. 

It  was  admitted  without  debate  that  prisoners  of  war 
escaping  to  a  neutral  territory  should  be  left  at  liberty; 
but  there  was  opposition  to  the  application  of  this  rule  to 
those  prisoners  of  war  who  are  brought  into  a  neutral  ter- 
ritory by  troops  taking  refuge  there.  The  Russian  dele- 
gation urged  against  this  measure  the  arguments  that 
for  a  neutral  state  to  liberate  captives  would  be  to  give  an 
advantage  to  one  of  the  belligerents,  and  hence  be  a 
breach  of  neutrality;  that  a  neutral  state  would  be  able 
to  do  for  one  belligerent  what  it  was  unable  to  do  for  itself 
on  the  field  of  battle,  —  that  is,  release  the  captive  soldiers 
belonging  to  it;    and  that  it  would  be  illogical  to  permit 

1  By  Article  13,  the  additional  article  adopted  in  1907. 


206  THE  TWO   HAGUE  CONFERENCES 

able-bodied  prisoners  of  war  to  go  at  liberty,  while  sick 
and  wounded  prisoners  of  war  are  required  to  be  pre- 
vented by  the  neutral  power  caring  for  them  from  partici- 
pating again  in  the  war.  In  reply  to  these  arguments,  it 
was  urged  that  the  captors  who  had  become  fugitives  in 
a  neutral  territory  had  probably  escaped  the  necessity  of 
surrendering  their  prisoners;  that  a  neutral  state  should 
not  be  required  or  permitted  to  prevent  a  victorious  bel- 
ligerent from  regaining  its  soldiers  who  had  been  cap- 
tured ;  that  a  neutral's  territory  is  inviolable,  and  can  not 
be  made  the  scene  of  any  warlike  operation  between 
belligerents,  —  such  as  that  of  keeping  soldiers  in  captiv- 
ity; and  that  the  sick  and  wounded  soldiers  required  by 
the  convention  to  be  prevented  from  participating  in  the 
war  again  are  such  as  are  voluntarily  confided  to  the  neu- 
tral power  by  a  belligerent  who  is  not  himself  a  fugitive 
from  the  field  of  battle.  The  latter  arguments  were  ac- 
cepted as  conclusive,  and  the  rule  was  adopted  by  a  vote 
of  thirty-one  to  three,  with  two  abstentions. 

The  rule  that  a  neutral  power  should  prevent  sick  and 
wounded  soldiers  from  participating  in  the  war  again,  is 
based  on  the  assumption  that  the  belligerent  who  confides 
them  to  the  neutral's  care  is  thereby  enabled  to  relieve  him- 
self of  incumbrances  and  thus  secure  the  mobility  requisite 
for  his  military  tasks.  This  relief  is  permitted  for  humani- 
tarian reasons,  but  it  should  not  be  to  the  ulterior  profit 
of  the  belligerent  to  whom  the  sick  and  wounded  belong. 

2.   Neutrals  within  Belligerent  Territory 

The  rights  and  duties  of  neutrals  residing  within  the 
territory  of  belligerents  were  discussed   upon  the  basis 


WARFARE   ON  LAND  207 

of  a  series  of  propositions  presented  by  the  delegation  of 
Germany.  Baron  von  Bieberstein,  in  presenting  them  to 
the  subcommission,  said  that  they  dealt  with  a  kind  of  ques- 
tions in  regard  to  which  disputes  are  particularly  frequent. 

"In  the  majority  of  states,"  he  said,  "there  are  hundreds  of  thou- 
sands of  inhabitants  belonging  to  another  nationality,  who,  for  various 
reasons,  have  come  to  settle  for  a  longer  or  shorter  time  in  a  foreign 
land.  There  are  others  who,  while  not  residing  in  the  foreign  coun- 
try, are  interested  in  some  business  enterprise,  and  own  lands  or  other 
wealth  within  it.  The  interests  of  all  these  people  are  affected  from 
the  moment  when  the  state  which  accords  them  its  hospitality  becomes 
engaged  in  war. 

"What  is  then  their  position  with  respect  to  the  belligerents? 
What  treatment  shall  they  receive  ?  Can  they  be  enrolled  in  the  ranks 
of  the  belligerents'  armies,  and  render  to  them  other  personal  services 
in  promoting  the  war?  Have  they  a  right  to  indemnity  if,  in  the 
course  of  the  hostilities,  their  lands  are  devastated,  their  property 
destroyed?  And  should  they  contribute  to  the  supply  of  the  military 
wants  of  the  belligerents  ? 

"...  For  the  majority  of  these  questions,  the  principles  applied 
by  the  various  governments  are  not  harmonious,  and,  in  each  war, 
this  discord  gives  rise  to  disputes  between  the  belligerents  and  the 
neutral  states  protecting  the  claims  of  their  subjects. 

"It  would  seem  desirable,  then,  to  put  an  end  to  this  uncertainty 
by  adopting  rules  which,  while  not  disregarding  military  necessities, 
shall  recognize  the  just  claims  of  neutral  states." 

Lord  Reay,  on  behalf  of  the  British  delegation,  said : 
"We  do  not  believe  that  the  present  system  produces 
wrongs  or  injustices;  but  we  should  be  ready,  if  the  con- 
trary be  proved,  to  examine  the  German  propositions 
again,  while  reserving  the  right  of  submitting  a  proposi- 
tion of  our  own." 

General  Davis,  of  the  United  States,  supported  the 
German  propositions  in  the  following  address : 


2o8  THE  TWO   HAGUE   CONFERENCES 

"The  delegation  of  the  United  States  considers  the  rules  relative 
to  neutrality  on  land,  submitted  by  the  French  delegation  and  adopted 
by  this  commission,  as  in  the  nature  of  a  general  declaration  of  prin- 
ciple which  conforms  with  the  rules  of  International  Law.  For  this 
reason,  and  because  of  their  excellence,  it  has  warmly  supported  the 
rules  proposed  by  the  French  delegation.  .  .  .  The  position  thus 
taken  has  been  occupied  by  the  government  of  the  United  States  for 
more  than  a  century. 

"But  the  articles  submitted  by  the  German  delegation  are  a  little 
more  advanced  and  establish  a  status  for  neutral  inhabitants  of  bel- 
ligerent territory.  The  status  thus  established  seems  to  me  to  con- 
form to  the  conditions  of  modern  commerce.  Commercial  operations 
are  no  longer  confined  to  a  single  state,  but  extend  to  several  states. 
It  is  not  necessary  to  explain  to  this  commission  the  extent  and  im- 
portance of  these  relations,  nor  the  importance  of  preventing  their 
useless  interruption  in  time  of  war. 

"The  rules  which  have  been  submitted  by  the  German  delegation 
embrace  this  point.  Moreover,  they  define  the  rights,  the  duties, 
and  the  immunities  of  a  neutral  inhabitant  of  a  belligerent  state  in 
time  of  war.  They  accord  to  him  immunity  from  burdens  of  a  speci- 
fically military  nature,  and  they  exempt  his  property  from  military 
contributions.  If  there  occur  the  military  necessity  of  confiscating 
or  utilizing  his  property,  he  must  receive  a  specific  and  generous  in- 
demnity. In  all  other  respects  his  situation  is  not  changed.  His 
property  is  taxed  to  support  the  civil  administration,  and,  if  the 
military  administration  of  civil  affairs  is  more  expensive  than  their 
ordinary  administration,  he  must  pay  his  share  of  the  increased 
expense.  The  rules  accord  him  exemption  only  from  specifically 
military  contributions. 

"The  delegation  of  the  United  States  believes  that  all  this  is  dis- 
tinct progress  for  humanity  and  for  the  exact  definition  of  the  rules 
and  obligations  of  neutrals.  And  for  reasons  just  stated,  it  is  happy 
to  support  the  propositions  of  the  delegation  of  Germany." 

The  proposed  rules,  twelve  in  number,  were  then 
taken  up  one  by  one  for  discussion,  and  four  of  them  were 
finally  adopted.    The  first  one  defined  neutral  persons 


WARFARE   ON   LAND  209 

as  "all  the  subjects  '  of  a  state  which  does  not  take  part  in 
the  war."  In  defense  of  this  definition,  Baron  von  Bie- 
berstein  argued  that  the  subjects  of  a  neutral  state  should 
not  be  considered  as  hostile  belligerents,  no  matter  what 
may  be  their  place  of  abode ;  and  that  the  tie  of  allegiance 
which  unites  them  with  a  neutral  state  creates  for  them  a 
special  status  carrying  with  it  rights  and  duties. 

Lord  Reay  asserted,  on  the  other  hand,  that  a  distinction 
should  be  made  between  the  status  of  a  neutral  person  as 
regards  the  belligerent  in  whose  land  he  resides,  and  his 
status  as  regards  the  belligerent  who  invades  that  land. 

"It  would  seem  to  us  unquestionable,"  he  said,  "that  usage  estab- 
lished by  International  Law  now  forbids  a  government  to  compel 
a  neutral  resident  within  its  territory  to  take  up  arms;  but  that  it  is 
permitted  to  treat  a  neutral,  as  far  as  concerns  his  property  or  lands, 
or  the  payment  of  taxes,  in  time  of  war,  in  the  same  manner  and  to 
the  same  extent  as  it  does  its  own  citizens. 

"On  the  other  hand,  the  invading  power  has  a  right  to  treat  all 
inhabitants  of  the  invaded  territory  on  a  plane  of  equality,  and  can 
therefore  exact  from  neutrals  the  same  contributions  and  the  same 
services  as  from  the  citizens  of  the  country.  The  neutral  has  no  right, 
then,  to  privileged  treatment,  and  any  special  position  which  may  be 
granted  him  will  be  due  only  to  the  grace  of  the  invader. 

"The  German  proposition  would  result  in  changing  this  condition 
of  things  and  would  concede  to  the  neutral  a  special  position  and  a 
treatment  more  favorable  than  that  accorded  to  the  citizens  of  the 
country  invaded." 

The  British  delegation  later  reconsidered  its  opposition 
to  this  first  rule,  and  it  was  adopted  unanimously  by  both 
commission  and  conference. 

The  second  rule  provides  that  a  neutral  can  not  avail 
himself  of  his  neutrality  if  he  commits  hostile  acts  against 

1  The  word  nationaux  was  adopted  after  the  rejection  of  rcssortissants. 


210  THE   TWO   HAGUE   CONFERENCES 

a  belligerent,  or  if  he  commits  acts  in  favor  of  a  belligerent, 
especially  if  he  enlists  voluntarily  in  the  ranks  of  the  armed 
force  of  one  of  the  combatants.  But  in  such  case  he  may 
not  be  treated  more  harshly  by  the  belligerent  against  whom 
he  has  broken  his  neutrality  than  can  be  the  citizen  of 
the  other  belligerent  state  who  has  done  the  same  thing. 
And  the  third  rule  provides  that  "acts  committed  in  favor  of 
a  belligerent"  do  not  include  the  contribution  of  goods  or 
the  lending  of  money  to  one  of  the  belligerents,  unless  the 
contributor  or  the  lender  dwells  within  the  territory  owned 
or  occupied  by  the  other  belligerent,  or  unless  the  goods 
come  from  those  territories;  nor  do  such  acts  include 
the  rendering  of  police  or  civil  services. 

These  rules  were  also  adopted  unanimously.  The  pro- 
viso that  a  neutral  who  breaks  his  neutrality  towards  one 
of  the  belligerents  may  not  be  treated  with  "exceptional 
severity  simply  because  he  was  a  neutral  when  he  com- 
mitted the  hostile  act,  was  adopted  on  the  initiative  of  the 
Swiss  delegation.  And  in  reply  to  a  question  put  by  a 
delegate  from  Haiti,  the  conference  informally  indorsed 
the  statement  made  by  several  leading  delegates  that  the 
writing  or  publishing  of  articles  criticising  the  war  should 
not  be  considered  a  "hostile  act." 

The  fourth  rule  *  provided  that  the  property  of  railways, 
coming  from  the  territory  of  neutral  powers  and  owned  by 
those  powers  or  by  companies  or  private  persons,  and 
recognizable  as  such,  can  be  requisitioned  and  used  by  a 
belligerent  only  in  the  case  and  to  the  extent  that  an  im- 
perious necessity  demands;  and  it  must  be  returned  as 
soon  as  possible  to  the  country  of  its  origin.     The  neutral 

1  A  part  of  this  rule  was  adopted  by  the  Conference  of  1899,  and  formed 
Article  54  of  its  Code  of  Laws  relating  to  Warfare  on  Land. 


WARFARE   ON   LAND  21 1 

power,  on  its  side,  may,  if  necessary,  retain  and  utilize,  to 
a  proper  extent,  the  property  coming  from  the  territory 
of  the  belligerent  power.  A  mutual  indemnity  must  be 
paid,  in  proportion  to  the  amount  of  property  used  and  to 
the  duration  of  its  utilization. 

The  property  indicated  by  this  rule  is  a  railroad  com- 
pany's rolling  stock,  or  cars  of  various  kinds,  and  the  rule 
was  adopted  on  the  motion  of  M.  Eyschen,  of  Luxemburg,1 
who  argued  that  large  countries  as  well  as  small  ones,  like 
his  own,  are  interested  in  its  adoption.  He  advanced 
three  reasons  why  a  distinction  should  be  made  between 
the  treatment  of  this  and  of  other  kinds  of  neutral  prop- 
erty: First,  a  country  might  be  drained  of  all  its  rolling 
stock,  if  a  belligerent  were  permitted  to  requisition  freely 
all  that  came  into  its  territory.  Second,  such  property 
is  destined  to  a  public  service,  —  to  the  general  interests 
of  an  entire  body  politic ;  and  if  there  be  a  collision  in  the 
matter  between  the  interests  of  a  belligerent  power  and 
those  of  a  peaceful  neutral,  why  should  the  neutral's  in- 
terests yield  to  the  belligerent's  ?  Finally,  an  injury  done 
to  a  private  individual  can  be  repaired  by  a  just  indemnity, 
but  the  evil  produced  by  the  confiscation  of  the  material 
of  public  transportation  is  incalculable  and  irreparable. 
After  pointing  out  in  an  extended  and  forceful  address  the 
vast  importance  of  unrestricted  railway  transportation  to 
the  economic  and  other  phases  of  modern  life,  and  the 
justice  of  his  proposition,  M.  Eyschen  closed  with  the 
following  appeal : 

"By  codifying  the  laws  of  warfare,  the  conference  has  already 
imposed  its  will  on  fields  of  battle.     But  around  the  theater  of  war, 

1  That  part  of  the  rule  adopted  in  1899  was  advocated  by  M.  Beernaert, 
of  Belgium,  and  adopted  then  on  his  initiative. 


212  THE  TWO   HAGUE   CONFERENCES 

many  peaceful  and  eminently  respectable  interests  are  sacrificed  to  it. 
Certain  of  these  interests  threatened  by  it  can  be  effectually  protected. 
By  strengthening  the  rights  of  neutrals,  the  conference  will  succeed 
in  restricting  the  economic  field  and,  in  circumscribing  more  narrowly 
the  closed  lists  of  combat.  This  will  be  one  more  of  the  most  efficient 
means  of  diminishing  the  evils  of  war,  and  of  accomplishing  the  mis- 
sion with  which  the  high  confidence  of  the  nations  has  honored  us." 

Although  General  von  Giindell,  of  Germany,  and  his 
military  colleague  from  Austria  made  speeches  in  reply  to 
M.  Eyschen,  calling  attention  to  the  imperious  necessities 
of  generals  in  the  field,  the  only  part  of  the  Luxemburg 
proposition  rejected  was  the  rule  that  at  the  beginning  of 
hostilities  a  sufficient  delay  should  be  accorded  by  each 
belligerent  to  neutrals  to  remove  railway  rolling  stock  to 
their  own  country.  The  rest  of  the  Luxemburg  propo- 
sition was  adopted  as  the  fourth  rule,  and  with  it  two 
desires  (vceux),  also  proposed  by  M.  Eyschen,  and  ex- 
pressed as  follows : 

"That  in  case  of  war  the  competent  military  and  civil  authorities 
shall  make  it  their  especial  duty  to  assure  and  protect  the  maintenance 
of  pacific  relations,  especially  commercial  and  industrial  relations, 
between  the  inhabitants  of  the  belligerent  countries  and  neutral 
states. 

"That  the  high  contracting  powers  shall  seek  to  establish,  by 
treaties  with  each  other,  uniform  agreements  concerning  the  military 
obligations  which  each  state  shall  exact  of  the  foreigners  settled  on  its 
territory." 

This  last  desire  was  proposed  and  passed  in  consequence 
of  the  failure  of  eight  propositions  made  by  the  German 
delegation  with  the  object  of  protecting  neutral  residents 
in  belligerent  lands  from  the  exaction  of  military  services 
(even  though  "  voluntarily "  offered)  and  from  unusual 
military  contributions.      The  eight  propositions  referred 


WARFARE    ON   LAND 


213 


to  were  subjected  to  a  long  discussion,  and  were  objected 
to  chiefly  for  the  reason  that  the  rules  proposed  by  them 
should  be  the  subject  of  national,  instead  of  international, 
legislation.  In  support  of  this  reason,  the  differences 
between  "emigrating  and  immigrating"  countries,  and 
between  "colonial  and  non-colonial"  countries,  were 
emphasized  with  the  object  of  showing  that  a  uniform 
rule  applied  to  all  countries  alike  would  not  be  just.  The 
commission  adopted  the  rules  by  a  feeble  majority;  but 
so  many  reservations  to  them  were  made  in  the  plenary 
session  of  the  conference  that  they  were  referred  back  to 
the  commission  with  the  result  that  they  were  there  sup- 
pressed. In  their  stead  the  second  desire  above  quoted 
was  adopted  unanimously  by  both  commission  and 
conference. 

D.   THE  LAWS  AND  CUSTOMS  OF  WARFARE  ON 

LAND 

The  Russian  programme  for  the  first  conference  men- 
tioned as  its  seventh  topic :  "The  revision  of  the  Declara- 
tion concerning  the  laws  and  customs  of  war  elaborated 
in  1874  by  the  Conference  of  Brussels,  which  has  remained 
unratified  to  the  present  day." 

The  Conference  of  Brussels  met  on  the  invitation  of  the 
Russian  government,  and  was  composed  of  representatives 
from  fourteen  of  the  chief  governments  of  Continental 
Europe  and  from  Great  Britain.  The  spirit  in  which  it 
did  its  work  was  expressed  in  the  preamble  to  its  declara- 
tion in  the  words: 

"It  has  been  asserted  unanimously  that  the  progress  of  civilization 
should  have  as  its  result  the  utmost  possible  diminution  of  the  calami- 


214  THE  TW0   HAGUE   CONFERENCES 

ties  of  war,  and  that  the  sole  legitimate  end  which  states  should  seek 
during  the  war  is  to  weaken  the  enemy  without  inflicting  useless 
suffering  upon  him.  .  .  .  War,  being  thus  regulated  [by  definite 
laws  and  customs],  would  entail  fewer  calamities,  and  be  less  sub- 
ject to  the  aggravations  caused  by  the  uncertainty,  the  surprises, 
and  the  passions  involved  in  the  struggle;  it  would  lead  more  effec- 
tually to  what  should  be  its  final  aim,  the  restoration,  namely,  of  a 
more  substantial  and  lasting  peace  between  the  belligerent  states." 

The  project  which  this  conference  drew  up  was  a  com- 
prehensive one,  containing  twelve  chapters  and  fifty-six 
articles.  It  did  not  adopt  this  code,  but  referred  it  to  the 
various  governments  represented,  "as  a  conscientious 
inquiry,  of  a  nature  to  serve  as  the  basis  of  a  later  exchange 
of  ideas."  Just  a  quarter  of  a  century  later,  its  project 
became  the  basis  of  the  code  adopted  by  the  first  Hague 
Conference.  Its  twelve  chapters  were  reduced  to  ten, 
and  its  fifty-six  articles  were  increased  to  sixty ;  while  the 
progress  in  civilization  and  in  warfare  during  the  quarter 
century  were  reflected  in  the  new  code  in  various  ways. 

In  the  course  of  the  discussion  of  these  articles  in  the 
Conference  at  The  Hague,  M.  de  Martens,  of  Russia,  took 
occasion  to  make  the  following  interesting  statement  as  to 
the  origin  and  motives  of  the  earlier  conference : 

"His  Majesty,  Alexander  II,  convinced  of  the  great  importance  of 
formulating  a  code  of  the  laws  and  customs  of  warfare  in  time  of  peace 
when  minds  and  passions  are  not  inflamed,  took  the  initiative  in  con- 
voking the  Conference  of  Brussels  in  1874.  The  Emperor  had  in 
mind  well-known  facts  of  history  which  prove  that,  in  time  of  war, 
mutual  recriminations  and  mutual  hatred  increase  the  inevitable 
atrocities  of  warfare.  Moreover,  the  uncertainty  of  belligerents  as 
to  the  laws  and  customs  of  war  provokes  not  only  hatred,  but  also  use- 
less cruelties  committed  on  the  field  of  battle. 

"The  initiative  of  my  August  Sovereign  was  not  due  at  all  to  a 
new  idea.     Already,  during  the  War  of  Secession,  President  Lincoln 


WARFARE   ON  LAND  215 

intrusted  to  Professor  Lieber  the  task  of  drawing  up  instructions  for 
the  armies  of  General  Grant.  These  regulations  were  a  great  bless- 
ing, not  only  to  the  troops  of  the  Northern  States,  but  also  to  those  of 
the  Southern  Confederates.  Such  were  the  circumstances  in  which 
the  force  of  events  themselves  evolved  the  idea  of  a  regulation  of  the 
laws  of  war.  The  example  was  given.  The  Declaration  of  Brussels, 
called  forth  by  Emperor  Alexander  II,  was  its  logical  and  natural 
sequence. 

"The  importance  of  this  declaration  consists  in  this:  for  the  first 
time,  an  international  agreement  concerning  the  laws  of  war  was  to 
be  established,  really  compulsory  for  the  armies  of  modern  states 
and  designed  to  protect  inoffensive,  peaceable,  and  unarmed  people 
from  the  useless  cruelties  of  warfare  and  from  the  evils  of  invasion 
which  are  not  required  by  imperious  military  necessities." 

1.   Belligerents 

a.    TIw  Conference  of  i8gg 

The  adoption  of  a  code  of  laws  for  the  regulation  of 
people  engaged  in  warfare  necessitates  a  definition  of 
those  to  whom  the  code  shall  apply.  The  term  belliger- 
ent is  applied  to  people  engaged  in  warfare;  and  the 
Conference  of  Brussels  defined  this  term  to  include  not 
only  soldiers  in  regular  armies,  but  also  militia  and  volun- 
teer corps  fulfilling  the  following  conditions:  1.  the  pos- 
session of  a  leader  responsible  for  his  subordinates;  2.  the 
possession  of  a  regular,  distinctive  emblem  recognizable 
at  a  distance;  3.  the  bearing  of  arms  openly;  4.  the  con- 
duct of  warfare  in  accordance  with  its  laws  and  customs.1 
It  further  provided  that  the  population  of  a  territory  which 
has  not  been  occupied,  who,  on  the  approach  of  the 
enemy,  spontaneously  take  up  arms  to  resist  the  invading 
troops  without  having  had  time  to  organize  themselves  in 

1  Article  1. 


2l6  THE   TWO   HAGUE   CONFERENCES 

accordance  with  the  conditions  above  stated,  shall  be 
regarded  as  belligerents,  if  they  respect  the  laws  and 
customs  of  war.1  It  also  provided  that  both  combat- 
ants and  non-combatants  may  form  a  part  of  the  armed 
forces  of  belligerents,  and  that,  in  case  of  capture  by 
the  enemy,  both  shall  be  entitled  to  the  rights  of  prisoners 
of  war.2 

When  these  articles  were  read  for  discussion  in  the  first 
Conference  at  The  Hague,  their  adoption  was  opposed  by 
M.  Beernaert,  of  Belgium,  who  said  that,  while  he  recog- 
nized their  object  to  be  the  humane  one  of  reducing  the 
evils  of  war  and  the  sufferings  which  it  entails,  yet  he 
believed  them  to  deal  with  things  which  can  not  be  made 
the  subjects  of  international  agreement,  and  which  should 
be  left  as  they  were,  —  under  the  dominion  of  that  tacit 
and  common  law  which  arises  from  the  principles  of  the  law 
of  nations.  "  By  attempting  to  restrict  war  to  states  alone," 
he  said,  "their  citizens  being  left  in  some  sort  as  simple  spec- 
tators, shall  we  not  run  the  risk  of  reducing  the  elements  of 
resistance,  by  enervating  the  powerful  strength  of  patriot- 
ism? Is  not  the  citizen's  first  duty  the  defense  of  his 
country,  and  is  it  not  to  the  accomplishment  of  this  duty 
that  we  all  owe  the  finest  pages  of  our  national  history? 
To  say  to  citizens  that  they  must  not  mingle  in  struggles 
on  which  depends  the  fate  of  their  country,— is  that  not 
to  encourage  that  evil  indifference  which  is,  perhaps,  one 
of  the  worst  ills  from  which  our  time  is  suffering?  Small 
countries,  above  all,  need  to  make  use  of  all  their  resources 
in  making  good  their  defense.  .  .  .  Will  it  not  be  better 
then  to  leave  this  matter  to  the  law  of  nations  and  to  that 
ceaseless  progress  of  ideas  which  the  present  conference 

1  Article  2.  2  Article  3. 


WARFARE    ON   LAND 


!I7 


and  the  lofty  initiative  from  which  it  proceeds  will  so 
powerfully  stimulate  ?  " 

President  de  Martens  immediately  replied  to  these  ar- 
guments by  an  address  in  which  he  first  recalled  the 
origin  and  purpose  of  the  Conference  of  Brussels,  and 
then  continued  as  follows : 

"It  was  said  in  1874,  and  has  been  said  again  to-day,  that  it  is 
preferable  to  leave  such  questions  in  uncertainty  and  in  the  exclusive 
domain  of  the  law  of  nations.  But  is  this  opinion  indeed  a  just  one? 
This  uncertainty,  is  it  advantageous  to  the  weak?  Does  the  weak 
become  stronger  because  the  duties  of  the  strong  are  not  determined  ? 
Does  the  strong  become  stronger  because  his  rights  are  defined  and, 
therefore,  restricted  ?  I  do  not  think  so.  I  am  profoundly  convinced 
that  it  is  above  all  in  the  interest  of  the  weak  that  his  rights,  as  well 
as  his  duties,  shall  be  defined.  It  is  impossible  to  impose  upon  the 
strongest  respect  for  the  rights  of  the  weakest,  if  the  duties  of  the  latter 
are  not  recognized. 

"...  But,  gentlemen,  the  heart  has  reasons  which  the  brain  does 
not  comprehend;  and  in  time  of  war,  there  is  only  one  rule  recog- 
nized: the  rule  of  war.  I  bow  respectfully  before  the  great  deeds 
done  by  the  human  heart  during  warfare  and  on  fields  of  battle ;  the 
Red  Cross  affords  the  best  examples  of  them.  But,  gentlemen, 
the  noble  sentiments  of  the  human  heart  very  often  and  unfortunately 
remain  a  sealed  book  in  the  midst  of  battles. 

"Our  present  task  is  to  remind  the  nations  of  their  duties,  not  only 
in  time  of  peace,  but  still  more  in  time  of  war.  Our  task  has  been  well 
defined  from  the  commencement  of  our  common  labors ;  we  desire  to 
establish,  in  a  spirit  of  harmony,  humanity,  and  justice,  a  uniform 
basis  for  the  instructions  which  our  governments  will  agree  to  give  to 
their  armed  forces  in  the  field. 

"...  To  leave  an  uncertainty  hovering  over  these  questions  would 
have  the  fatal  result  of  causing  the  interests  of  force  to  triumph  over 
those  of  humanity.  In  drawing  your  kind  and  serious  attention  to 
these  considerations,  gentlemen,  I  have  the  sole  desire  that  you  shall 
measure  aright  the  inevitable  consequences  of  sacrificing  the  vital 
interests  of  peaceful  and  unarmed  populations  by  leaving  them  to  the 


2i8  THE   TWO   HAGUE   CONFERENCES 

risks  of  war  and  of  the  law  of  nations.  These  consequences  will  be 
disastrous  in  the  highest  degree,  because  the  Conference  at  The  Hague 
will  have  demonstrated,  a  second  time,  in  the  eyes  of  the  civilized 
world,  the  inability  of  governments  to  define  the  rights  of  warfare  for 
the  purpose  of  restricting  its  cruelties  and  atrocities.  It  is  for  you, 
gentlemen,  to  judge  of  the  deplorable  result  which  this  fact  will  have 
on  the  public  opinion  of  the  civilized  world.  It  is  for  you  to  answer 
the  question :  To  whose  advantage  will  be  the  doubt  and  uncertainty, 
—  to  the  weak  or  to  the  strong?" 

In  spite  of  M.  de  Martens's  powerful  appeal  for  the 
adoption  of  the  rules  defining  belligerents,  the  subcom- 
mission  was  not  entirely  reassured  as  to  a  country's 
entire  liberty  of  defense,  and  at  a  later  meeting  General 
Sir  John  Ardagh,  of  Great  Britain,  proposed  the  follow- 
ing article  in  addition:  "Nothing  in  this  chapter  shall  be 
considered  as  tending  to  diminish  or  suppress  the  right 
which  belongs  to  the  population  of  an  invaded  country  to 
fulfill  its  duty  of  opposing  to  the  invaders,  by  every  legiti- 
mate means,  the  most  energetic  patriotic  resistance." 

Colonel  Kiinzli,  of  Switzerland,  warmly  supported  this 
last  article,  and  proposed  in  addition  the  rule  that  "no 
reprisals  can  be  made  upon  the  populace  of  an  occupied 
territory  for  having  taken  up  arms  openly  against  the  in- 
vader." He  advocated  these  additions  in  an  ardent  speech, 
whose  keynote  was:  "Do  not  punish  the  love  of  country; 
do  not  take  harsh  measures  against  nations  who  rise  en 
masse  in  defense  of  their  soil." 

Again,  M.  de  Martens  made  an  effective  reply.  He 
declared  that  neither  the  Conference  of  Brussels  nor  that 
of  The  Hague  had  any  desire  or  intention  of  setting  bounds 
to  the  nations'  virtue  of  patriotism,  or  contesting  their 
right  of  defense.  "This  right  is  sacred,"  he  said,  "but 
no  less  sacred  is  the  duty  of  the  governments  not  to  sacri- 


WARFARE    ON   LAND 


219 


fice  useless  victims  to  the  purposes  of  war.  .  .  .  Heroes 
are  not  created  by  codes,  and  the  only  code  which  heroes 
have  is  their  self-sacrifice,  their  good  will,  and  their  patri- 
otism. .  .  .  The  rules  we  are  considering  leave  the  door 
open  to  the  heroic  sacrifices  which  nations  will  be  ready  to 
make  for  their  defense :  a  heroic  nation  is,  like  heroes, 
beyond  codes  and  rules  and  facts.  .  .  .  But  our  task  is 
simply  to  establish  by  common  agreement  between  states 
the  rights  and  duties  to  be  observed  by  those  peoples  who 
desire  to  struggle  legitimately  for  their  country,  ...  to 
save  the  lives  and  property  of  the  weak,  the  unarmed,  and 
the  inoffensive."  He  then  read  a  statement  which,  while 
asserting  the  great  desirability  of  defining  and  regulating 
the  usages  of  war,  admitted  the  present  impossibility  of 
providing  for  every  contingency,  and  declared  that  "in  the 
cases  not  included  within  the  agreement  of  to-day,  nations 
and  belligerents  will  remain  under  the  protection  and  under 
the  sovereignty  of  the  principles  of  international  law,  such 
as  they  flow  from  established  custom  between  civilized 
nations,  from  the  laws  of  humanity,  and  from  the  de- 
mands of  the  public  conscience." 

This  statement  was  accepted  as  satisfactory  by  M. 
Beernaert,  who  exclaimed:  "To-morrow  as  to-day,  the 
rights  of  the  conqueror,  far  from  being  infinite,  will  be 
restrained  by  the  laws  of  the  universal  conscience,  and  no 
general  will  dare  to  infringe  upon  them,  since  that  would 
be  to  place  himself  under  the  ban  of  civilized  nations." 
The  subcommission,  also,  accepted  M.  de  Martens's 
statement  as  a  satisfactory  supplement  to  the  rules,  and 
it  adopted  the  latter. 

The  British  and  Swiss  delegates  were  still  inclined  to 
insist  upon  their  proposed  additions  to  the  rules;    but 


220  THE   TWO   HAGUE   CONFERENCES 

when  the  military  representatives  from  Germany,  Russia, 
the  Netherlands,  and  other  countries  began  to  argue  that 
the  rules  were  already  too  liberal  in  recognizing  non-sol- 
diers as  soldiers,  and  when  even  the  rules  adopted  were 
thus  put  in  jeopardy,  they  withdrew  their  additions,  and 
the  long  debate  came  to  a  sudden  end. 

The  delegates  from  the  United  States  took  no  part  in 
this  debate ;  but  Captain  Crozier  says  in  his  official  report 
that  he  considered  the  withdrawal  of  the  British  and  Swiss 
propositions  the  wise  thing  to  do,  since  the  rules  adopted 
had  already  granted  "the  extreme  concession  to  un- 
organized resistance"  by  imposing  upon  it  solely  the  ob- 
servance of  the  laws  and  customs  of  war. 

The  commission  and  conference  adopted  unanimously 
the  subcommission's  rules  in  regard  to  belligerents,  and 
they  took  their  place  as  Articles  1,2,  and  3,  of  the  con- 
vention adopted,  while  M.  de  Martens's  statement  above 
referred  to  was  made,  as  a  commentary  upon  them  and, 
indeed,  upon  all  the  rules  adopted,  the  preamble  to  the 
entire  convention. 


b.    The  Conference  of  igoj 

No  long  debate  of  fundamental  importance,  concerning 
the  scope  of  the  term  "belligerents,"  occurred  in  the  Con- 
ference of  1907.  But  the  German  delegates  sought  to 
define  a  little  more  precisely  the  meaning  of  the  term,  and 
to  restrict  a  little  more  closely  its  use.  They  introduced 
two  amendments,  one  providing  that  a  previous  notice 
must  be  given  to  the  enemy  of  the  "regular,  distinctive 
emblem"  worn  by  militia  corps  and  volunteers;  the  other 
providing  that  a  populace  rising  en  masse  to  resist  an  in- 


WARFARE   ON   LAND  221 

vader  must,  to  be  considered  belligerents,  not  only  "respect 
the  laws  and  customs  of  war,"  but  also  bear  arms  openly. 

General  von  Giindell,  of  Germany,  supported  the  first 
amendment  by  the  argument  that  the  distinctive  signs  of 
militia  corps  and  volunteers  are  difficult  to  recognize  at  a 
long  distance,  and  that  a  previous  notice  of  them  to  bel- 
ligerents would  help  to  avoid  mistakes.  General  Amourel, 
of  France,  opposed  the  amendment  for  the  reasons  that 
militia,  or  at  least  volunteer  corps,  are  generally  organized 
at  critical  moments  when  to  give  such  notice  would  be 
impracticable ;  that  distinctive  signs  must  be  changed, 
especially  in  the  course  of  long  campaigns ;  that  to  require 
notice  of  all  such  changes  would  be  excessive ;  and  that, 
after  all,  the  true  distinctive  sign  of  combatants  is  the 
bearing  of  arms  openly,  and  this  requirement  is  made  by 
the  existing  rule. 

The  representative  of  Switzerland,  who  had  just  an- 
nounced that  his  country,  after  eight  years  of  hesitation, 
had  recently  signed  the  Convention  of  1899,  opposed  the 
German  amendment  for  the  reason  that  it  would  be  one 
more  restriction  on  a  country's  right  of  defense. 

The  amendment  was  voted  down  by  the  subcommission 
by  a  vote  of  twenty-three  to  eleven ; *  and  it  was  not  again 
taken  up. 

The  second  German  amendment  requiring  a  people 
rising  en  masse  against  an  invader  "to  bear  arms  openly  " 
was  supported  by  General  von  Giindell,  who  pointed  out 
the  grave  consequences  which  would  result,  in  time  of 
war,  from  the  carrying  of  concealed  weapons.  He  re- 
called Colonel  von  Schwarzhoff 's  words,  in  regard  to  this 
matter,  in  the  Conference  of  1899 : 

1  The  United  States  delegation  voted  for  it. 


222  THE  TWO  HAGUE   CONFERENCES 

"And  since  we  are  speaking  of  humanity,  it  is  time  to  remember 
that  soldiers  also  are  men,  and  have  a  right  to  be  treated  with  hu- 
manity. Soldiers  who,  exhausted  by  fatigue  after  a  long  march  or  a 
battle,  come  to  rest  in  a  village  have  a  right  to  be  sure  that  the  peace- 
ful inhabitants  shall  not  change  suddenly  into  furious  enemies." 

There  was  no  opposition  to  this  amendment;  but 
Colonel  Michelson,  of  Russia,  inquired  if  it  would  not 
cause  the  part  of  the  population  who  did  not  take  up  arms 
to  be  suspected  unjustly  and  thus  subjected  to  the  risk 
of  reprisals.  M.  Beernaert,  of  Belgium,  replied  to  this 
question  that  the  new  rule  could  not  endanger  those  who 
bore  no  weapons  at  all,  —  that  it  was  directed  only  against 
the  carrying  of  concealed  weapons. 

The  amendment  was  passed  by  a  vote  of  thirty  to  three,1 
with  two  abstentions.2  Switzerland's  delegate  explained 
that  his  abstention  from  the  vote  was  due  to  a  fear  lest  the 
new  rule  might  be  considered  an  aggravation  of  the  present 
state  of  affairs. 

The  commission  and  conference  adopted  the  amend- 
ment without  discussion. 

2.    Prisoners  of  War 

a.    The  Conference  of  i8gg 

No  formal  definition  of  " prisoners  of  war"  is  given 
in  the  laws  and  customs  codified  by  the  first  conference, 
but  this  is  implied  by  its  rules  in  regard  to  belligerents. 
It  was  expressly  voted,  however,  that  individuals  who 
follow  an  army  without  directly  belonging  to  it,  such 
as  newspaper  correspondents  and  reporters,  sutlers  and 
contractors,  who  fall  into  the  enemy's  hands,  and  whom 

1  Chili,  Cuba,  Mexico.  2  Montenegro,  Switzerland. 


WARFARE   ON  LAND 


223 


the  latter  thinks  fit  to  detain,  have  a  right  to  be  treated 
as  prisoners  of  war,  provided  that  they  are  supplied  with 
a  certificate  from  the  military  authorities  of  the  army  they 
were  accompanying  (Article  13). 

The  treatment  accorded  to  prisoners  of  war  is  carefully 
defined.  They  are  in  the  power  of  the  hostile  govern- 
ment, but  not  in  that  of  the  individuals  or  corps  who 
captured  them ;  they  must  be  humanely  treated ;  all  their 
personal  property,  except  arms,  horses,  and  military  papers, 
remains  their  own  (Article  4).  They  may  be  detained  in 
a  town,  fortress,  camp,  or  any  other  location  and  bound 
not  to  go  beyond  certain  fixed  limits;  but  they  can  be 
confined  only  as  an  indispensable  measure  of  safety 
(Article  5).  They  must  be  provided  for  by  the  govern- 
ment into  whose  hands  they  have  fallen;  and,  in  the 
absence  of  a  special  treaty  between  the  belligerents,  they 
must  be  treated,  as  regards  food,  quarters,  and  clothing, 
on  the  same  footing  as  the  troops  of  the  government  which 
has  captured  them  (Article  7).  They  are  subject  to 
the  laws,  regulations,  and  orders  in  force  in  the  army  of 
the  state  into  whose  hands  they  have  fallen ;  and  any  act 
of  insubordination  justifies  the  adoption  of  such  measures 
of  severity  towards  them  as  may  be  necessary  (Article  8, 
paragraphs  1  and  2).  They  shall  enjoy  untrammeled  free- 
dom in  the  exercise  of  their  religion,  including  attendance 
at  their  own  church  services,  on  the  sole  condition  that  they 
comply  with  the  regulations  against  disorder  and  escape 
prescribed  by  the  military  authorities  (Article  18).  Their 
wills  shall  be  received  or  drawn  up  on  the  same  conditions 
as  for  soldiers  of  the  national  army ;  and  the  same  rule  shall 
be  applied  in  regard  to  death  certificates  and  to  burial,  due 
consideration  being  given  to  grade  and  rank  (Article  19). 


224  THE   TWO   HAGUE    CONFERENCES 

Certain  regulations,  quite  new  and  broad  in  their  scope, 
were  also  adopted  as  to  their  employment  and  wages. 
A  state  may  employ  its  prisoners  of  war  as  laborers, 
according  to  their  military  rank  and  natufal  aptitude ; 
but  the  tasks  set  them  shall  not  be  excessive,  and  shall 
have  nothing  to  do  with  the  operations  of  the  war.  They 
may  be  authorized  to  work  for  the  state  itself,  for  private 
persons,  or  on  their  own  account.  The  work  they  do 
for  the  state  shall  be  paid  for  according  to  the  wages  in 
force  for  soldiers  of  the  national  army  employed  on  similar 
tasks;  the  work  they  do  for  the  non-military  departments 
of  the.  public  service  or  for  private  persons  shall  be  ar- 
ranged and  paid  for  by  agreement  with  the  military 
authorities.  Their  wages  shall  be  used  for  the  better- 
ment of  their  condition,  and  the  balance  shall  be  paid 
them  at  the  time  of  their  release,  after  the  cost  of  their 
maintenance  is  deducted  (Article  6). 

The  proposition  was  made,  but  rejected,  that  officers 
taken  prisoner  should  be  permitted  to  retain  their  swords. 
It  was  provided,  on  the  other  hand,  that  they  may  be 
paid  their  full  salary  by  their  captors,  if  circumstances 
demanded,  and  that  their  own  government  should  repay 
the  sum  (Article  17).  M.  Beernaert,  of  Belgium,  pro- 
posed that  this  action  should  be  taken  on  the  mediation - 
of  a  neutral  power;  but  Colonel  von  Schwarzhoff,  of 
Germany,  opposed  this  mediation  as  being  a  probable 
source  of  international  difficulties,  and  M.  Beernaert 
withdrew  the  proposition. 

The  desirability  of  extending  charitable  aid  and  comfort 
to  prisoners  of  war  was  recognized,  and  such  activity 
was  regulated  by  a  few  simple  rules.  Relief  societies 
organized  for  the  purpose  of  serving  as  the  medium  of 


WARFARE    ON   LAND  225 

such  charitable  aid,  and  regularly  constituted  in  accord- 
ance with  the  laws  of  their  country,  shall  receive  from 
belligerents,  for  themselves  and  their  duly  authorized 
agents,  every  facility  compatible  with  military  necessities 
and  administrative  regulations,  for  the  effective  accom- 
plishment of  their  humane  task.  Delegates  of  these 
societies  may  be  permitted  to  distribute  relief  within 
places  of  detention,  as  well  as  within  the  halting  places 
of  prisoners  being  sent  back  to  their  own  country,  if  fur- 
nished with  a  personal  permit  by  the  military  authorities, 
and  on  giving  a  written  promise  to  comply  with  all  the 
regulations  for  order  and  police  (Article  15).  ^ 

The  Conference  of  1899  made  a  notable  advance  beyond 
that  of  1874  in  providing  for  the  establishment  of  such 
bureaus  of  information  relative  to  prisoners  of  war  as 
had  been  in  partial  operation  during  the  wars  of  1866 
and  1870.  Such  bureau  must  be  established,  on  the  com- 
mencement of  hostilities,  in  each  of  the  belligerent  states 
and  in  the  neutral  countries  on  whose  territory  belligerents 
have  been  received.  Its  duty  is  to  reply  to  all  inquiries 
about  prisoners  of  war ;  and  it  must  be  supplied  from  all 
competent  sources  with  the  information  necessary  to 
enable  it  to  keep  an  individual  record  of  each  prisoner 
of  war.  It  must  be  kept  informed  of  internments  and 
transfers,  as  well  as  of  admissions  into  hospitals  and  of 
deaths  (Article  14,  paragraph  1). 

The  rule  that  every  prisoner  of  war,  if  questioned,  is 
bound  to  declare  his  true  name  and  rank  (Article  9)  was 
originally  intended  to  aid  in  according  him  proper  treat- 
ment ;  but  it  will  be  of  much  initial  service  also  to  the  new 
bureau  of  information. 

The  new  bureau  is  also  charged  with  the  collection  of 


226  THE   TWO   HAGUE   CONFERENCES 

all  articles  of  personal  use,  all  valuables,  letters,  etc., 
found  on  the  battlefields  or  left  by  prisoners  who  have 
died  in  hospital  or  ambulance ;  and  it  must  transmit  such 
things  to  those  to  whom  they  belong  (Article  14,  para- 
graph 2). 

The  rule  in  regard  to  the  punishment  of  prisoners  who 
attempt  to  escape  gave  rise  to  considerable  difference  of 
opinion.  The  Brussels  rule  permitted  prisoners  in  flight 
to  be  fired  upon,  after  they  had  been  summoned  to  halt ; 
but  the  Hague  rule  does  not  expressly  give  this  per- 
mission. 

The  Brussels  rule  permitted  disciplinary  punishment 
or  a  more  strict  confinement  for  prisoners  recaptured  in 
an  attempt  to  escape ;  the  Hague  rule  permits  only  discipli- 
nary punishment  in  such  cases  (Article  8,  paragraph  3). 
Professor  Lammasch,  of  Austria,  argued  that  in  view 
of  the  conflict  of  duties  which  exists  for  a  prisoner  of  war, 
he  should  be  subjected  to  no  punishment  whatever, 
even  disciplinary  punishment,  for  an  attempt  to  escape. 
Colonel  Gilinsky,  of  Russia,  on  the  other  hand,  argued 
that  disciplinary  punishment  would  not  be  sufficient  to 
repress  attempts  to  escape ;  that  strong  guards  can  not  be 
spared  from  the  army  to  watch  prisoners  of  war;  that 
with  weak  guards  it  would  always  be  easy  for  skillful 
prisoners  to  escape,  and  if  this  could  be  done  with  im- 
punity, or  with  slight  punishment,  such  individuals  would 
make  a  practice  of  getting  captured  and  then  of  escaping 
with  information  for  their  own  army.  He  therefore 
advocated  the  recognition  of  an  attempt  to  escape  as  an 
offense,  to  be  tried  and  punished  by  court  martial.  The 
conference  took  the  middle  ground  between  these  two 
contentions,  and  retained  disciplinary  punishment,  while 


WARFARE    ON   LAND 


227 


rejecting  closer  confinement  and  trial  and  punishment  by 
court  martial. 

General  Order  No.  100  of  the  United  States  regulations 
provided  for  severe  penalty,  even  for  death,  for  conspiracy 
among  prisoners  of  war  to  effect  a  united  or  general  escape, 
or  to  revolt  against  the  authority  of  the  captors.  But 
neither  the  Brussels  nor  the  Hague  rules  provide  expressly 
for  such  an  offense,  although  the  Hague  Conference  gave 
informal  assent  to  the  statement  made  by  M.  Rolin,  of 
Siam,  that  crimes  associated  with  attempts  to  escape, 
such  as  the  assassination  of  guards,  etc.,  are  recognized 
and  may  be  punished  in  accordance  with  the  rule  subject- 
ing prisoners  of  war  to  the  laws,  regulations,  and  orders 
in  force  in  the  army  of  the  state  into  whose  power  they 
have  fallen  (Article  8,  paragraph  1). 

The  Brussels  rule  provided  that  prisoners  who  have 
succeeded  in  escaping  and  are  again  taken  prisoner 
are  not  liable  to  any  punishment  for  their  previous  flight. 
Colonel  Khuepach,  of  Austria,  said  that  by  permitting 
no  punishment  for  successful  flight,  and  by  permitting 
disciplinary  punishment  for  unsuccessful  flight,  the  rule 
would  set  a  premium  on  cleverness.  But  the  Hague 
Conference  adopted  the  Brussels  rule  (Article  8,  para- 
graph 4). 

Finally,  certain  rules  were  adopted  regarding  the  release 
of  prisoners  on  parole.  Prisoners  of  war  may  be  set  at 
liberty  on  parole  if  the  laws  of  their  own  country  authorize 
it,  and,  in  such  case,  they  are  bound,  on  their  personal 
honor,  scrupulously  to  fulfill  the  promises  they  have  made 
both  to  their  own  government  and  to  the  government 
by  whom  they  were  made  prisoners.  Their  own  govern- 
ment is  bound  to  require  or  accept  of  them  no  service 


228      THE  TWO  HAGUE  CONFERENCES 

incompatible  with  the  parole  given  (Article  10).  Any 
prisoner  of  war,  who  is  liberated  on  parole  and  recaptured 
bearing  arms  against  the  government  to  whom  he  had 
pledged  his  honor,  or  against  the  allies  of  that  government, 
forfeits  his  right  to  be  treated  as  a  prisoner  of  war,  and 
may  be  brought  before  the  courts  for  trial  (Article  12). 
General  Order  No.  100,  of  the  United  States,  prescribed 
the  death  penalty  for  this  offense;  the  Hague  rule,  fol- 
lowing that  of  Brussels,  merely  provides  that  the  offender 
shall  be  subjected  to  trial;  but  here,  again,  the  injured 
belligerent's  laws  are  evidently  supposed  to  operate. 

The  rules  regarding  prisoners  of  war  end,  appro- 
priately, with  the  requirement  (adopted  for  the  first 
time  in  the  Hague  convention)  that  after  the  conclusion 
of  peace,  prisoners  of  war  shall  be  sent  back  to  their 
own  country  with  the  shortest  possible  delay  (Article  20). 

b.    The  Conference  of  1907 

The  Japanese  delegation  proposed  to  define  still  further 
the  term  "prisoners  of  war,"  by  adding  to  Article  13  the 
rule  that  "the  subjects  of  a  belligerent  state,  residing 
within  the  territory  of  their  country's  enemy,  can  not  be 
confined  in  one  place  (internes)  unless  the  exigencies 
of  the  war  impose  the  necessity  of  such  action."  Count 
Tornielli,  of  Italy,  supported  this  proposition,  but  de- 
manded that  the  prohibition  should  apply  to  the  expulsion 
of  such  people  as  well.  The  Japanese  delegation  accepted 
Count  Tornielli's  amendment,  and  explained  that  its  own 
proposition  was  due  to  a  desire  to  protect  from  adverse 
local  laws  the  persons,  goods,  and  business  of  subjects 
of  a  belligerent  state  residing  within  the  enemy's  territory ; 


WARFARE   ON   LAND  229 

this  protection,  it  claimed,  was  shown  to  be  necessary  by 
certain  cases  which  have  occurred  since  1899.  It  denied 
the  charge  that  its  proposition  was  really  designed  to 
establish,  under  the  cloak  of  "  imperious  military  necessity," 
the  right  of  interning  non-combatant  populations,  and 
declared  that  it  was  ready  to  strike  out  the  words  which 
admit  of  any  exception  to  the  rule. 

The  Italian  delegation  supported  its  proposition  by 
arguing  that,  although  obnoxious  individuals  may  always 
be  expelled  from  a  country,  a  belligerent's  right  to  expel 
the  enemy's  subjects  en  masse  should  be  restricted  to 
cases  where  "military  necessity"  has  caused  the  enemy 
to  resort  to  internment  en  masse.' 

The  Japanese  proposition  was  vigorously  resisted  for 
the  reason  that  it  was  opposed  to  the  principle  of  the 
convention  of  1899,  by  which  war  is  restricted  to  bellig- 
erents, and  the  civil  population  is  protected  from  it  in 
every  possible  way;  while  the  Italian  was  resisted  on  the 
ground  that  it  was  opposed  to  the  incontestable  right  of 
each  state  to  expel  obnoxious  residents  both  in  time  of  war 
and  in  time  of  peace. 

In  view  of  the  strong  opposition  to  the  two  propositions 
in  the  subcommission  and  its  committee,  they  were  not 
pressed  to  a  vote,  and  both  were  allowed  to  lie  on  the  table. 

Several  propositions  were  presented  affecting  the  treat- 
ment of  prisoners  of  war.  The  Japanese  delegation 
proposed  to  include  within  personal  property  which  might 
be  taken  from  prisoners,  not  only  arms,  horses,  and  mili- 
tary papers  (Article  4),  but  also  "all  other  articles  per- 
taining to  military  usages."  Asked  if  this  phrase  referred 
to  optical  and  measuring  instruments,  the  Japanese  repre- 
sentative replied  that  it  had  reference  especially  to  maps, 


230  THE  TWO   HAGUE   CONFERENCES 

bicycles,  and  means  of  transportation  for  military  pur- 
poses. The  proposition  was  voted  upon  without  further 
discussion,  and  was  rejected  by  twenty-nine  votes  to  six.1 

The  Cuban  delegation  moved  an  amendment  (to  Rule  5) 
providing  that  prisoners  of  war  can  be  confined  only  as 
an  indispensable  measure  of  safety,  and  only  for  the  dura- 
tion of  the  circumstances  which  necessitate  their  confine- 
ment. This  amendment  was  adopted  unanimously,  and 
without  discussion. 

Several  amendments  were  proposed  for  the  regulation 
of  the  work  and  wages  of  prisoners  of  war.  The  Spanish 
delegation  moved  that  officers  be  excepted  from  the  rule 
that  a  state  may  employ  its  prisoners  of  war  as  laborers 
according  to  their  military  rank  and  natural  aptitude 
(Article  6).  The  only  argument  advanced  in  favor  of 
this  exception  was  that  "it  would  not  be  suitable  to  intrust 
to  the  mercy  of  the  captor  that  discretion  as  to  rank  and 
aptitude  which,  under  certain  circumstances,  might  oblige 
an  officer  to  perform  vexatious  tasks."  The  proposition 
was  not  opposed,  and  was  adopted  unanimously.  On 
the  motion  of  the  German  delegation,  the  words  "accord- 
ing to  their  military  rank"  were  retained  in  the  rule  to  be 
applied  to  under  officers.  A  Japanese  amendment  was 
also  adopted,  providing  that  where  no  system  of  wages 
is  in  force  for  soldiers  of  the  national  army,  prisoners  of 
war  shall  be  paid  according  to  a  rate  proportioned  to  the 
tasks  performed.  Another  Spanish  amendment  provided 
that  the  cost  of  maintaining  prisoners  of  war  shall  not 
be  deducted  from  the  wages  paid  to  them  on  their  release 
(Article  6).     This  was  advocated  on  the  ground  that  the 

1  The  affirmative  votes  were  those  of  the  United  States,  Austria,  Great 
Britain,  Japan,  Panama,  and  Roumania. 


WARFARE   ON   LAND  231 

clearness  of  food,  often  very  great  in  countries  engaged  in 
warfare,  or  other  circumstances,  might  use  up  all  the 
wages  of  the  prisoners,  and  thus  their  captor  alone,  who 
is  bound  to  support  them  in  any  case,  would  benefit  by 
their  labor.  This  amendment  was  opposed  for  the  reason 
that  its  adoption  might  make  soldiers  better  off,  financially, 
when  prisoners  of  war  than  when  at  home  where  a  portion  of 
their  earnings  must  go  towards  their  support.  The  amend- 
ment was  rejected  by  a  vote  of  twenty-three  to  twelve.1 

The  Japanese  delegation  proposed  that  officers  made 
prisoners  of  war  may  be  paid  a  suitable  salary  by  the  gov- 
ernments into  whose  hands  they  fall,  subject  to  reimburse- 
ment by  the  officers'  government  (Article  17).  This  amend- 
ment was  referred  to  a  committee,  which  adopted  the  rule 
—  it  was  believed  with  the  Japanese  military  delegate's 
assent  —  that  the  government  shall  pay  to  officers  who 
are  prisoners  of  war  within  their  hands  a  salary  equal 
to  that  paid  to  officers  of  the  same  rank  in  its  own  army, 
subject  to  reimbursement  by  their  own  government.  The 
committee's  phrasing  of  the  rule  did  away  with  the  optional 
character  of  the  rule  of  1899,  and  harmonized  it  with  the 
Geneva  Convention's  rule  in  regard  to  the  pay  of  physicians 
made  prisoners  of  war.  When  it  was  reported  to  the 
subcommission,  Japan's  first  delegate  said  that  his  mili- 
tary colleague  had  not  given  his  assent  to  it  in  the  com- 
mittee, and  that  the  Japanese  delegation  would  vote 
against  it.  The  subcommission  adopted  it  by  a  vote  of 
thirty- four  to  one;  and  at  a  later  session  of  the  commis- 
sion this  vote  was  made  unanimous  by  the  Japanese  dele- 
gation, under  instructions  from  its  government,  changing 
its  vote  to  the  affirmative. 

1  The  United  States  delegation  voted  for  it. 


232  THE   TWO   HAGUE   CONFERENCES 

The  bureau  of  information,  provided  for  in  1899,  was 
made  the  subject  of  a  Japanese  and  a  Cuban  amendment, 
both  of  which  were  unanimously  adopted  without  dis- 
cussion (Article  14).  They  charged  the  bureau  with  the  ad- 
ditional duty  of  keeping  a  record  of  the  prisoner's  registra- 
tion numbers,  name  and  forename,  age,  place  of  residence, 
rank,  corps,  date  and  place  of  capture,  confinement, 
parole,  exchange,  escape,  admission  to  hospitals,  wounds, 
disease,  and  "all  other  particulars,"  and  of  forwarding 
this  record  to  the  prisoner's  own  government  after  the 
conclusion  of  peace. 

3.   Means  of  injuring  the  Enemy 
a.    The  Conference  of  i8gg 

The  conference  first  established,  without  opposition 
or  discussion,  the  general  principle  that  "belligerents 
have  not  an  unrestricted  right  of  adopting  means  of 
injuring  the  enemy"  (Article  22). 

It  then  recognized  the  validity  of  special  treaties  which 
prohibit  certain  of  these  means,  and  enumerated  seven 
upon  which  it  placed  its  own  prohibition.  These  seven 
are  as  follows:  1.  The  use  of  poison  or  poisoned  arms; 
2.  The  treacherous  killing  or  wounding  of  individuals 
belonging  to  the  hostile  nation  or  army;  3.  The  killing 
or  wounding  of  an  enemy  who,  having  laid  down  his  arms 
or  having  no  longer  means  of  defense,  has  surrendered 
at  discretion ;  4.  The  declaration  that  no  quarter  will  be 
given;  5.  The  use  of  arms,  projectiles,  or  materials  of  a 
nature  to  cause  superfluous  injury;  6.  The  improper 
use  of  a  flag  of  truce,  a  national  flag,  military  ensigns,  or 
the  enemy's  uniform,  as  well  as  of  the  distinctive  signs 


WARFARE    ON    LAND  233 

of  the  Geneva  Convention ;  7.  The  destruction  or  seizure 
of  the  enemy's  property,  unless  imperatively  demanded 
by  the  necessities  of  war  (Article  23). 

These  seven  prohibitions  were  adopted  unanimously, 
and  with  very  little  discussion.  The  Brussels  rule  used 
the  word  "murder  "  instead  of  "killing"  in  the  second  and 
third  prohibitions;  the  Hague  Conference  substituted 
the  milder  word,  and  also  added  "wounding,"  which  the 
Brussels  rule  did  not  include.  General  Order  No.  100 
prescribed  the  death  penalty  for  killing  or  wounding  a 
disabled  enemy;  but  the  Hague  convention  leaves  pen- 
alties to  the  belligerent's  own  laws.  The  Hague  rule  in 
regard  to  quarter  is  more  drastic  than  that  of  the  United 
States,  which  permitted  the  declaration  of  "no  quarter" 
as  a  retaliatory  measure  and  in  the  special  case  where  a 
commander  believes  himself  in  such  great  straits  that  his 
own  salvation  makes  it  impossible  for  him  to  encumber 
himself  with  prisoners;  the  Hague  prohibition  of  the 
declaration  of  no  quarter  is  absolute. 

When  the  prohibition  of  destroying  or  seizing  the  en- 
emy's private  property,  except  in  case  of  dire  military 
necessity,  was  adopted,  Captain  Crozier,  of  the  United 
States,  endeavored  to  have  this  rule  applied  to  private 
property  on  the  sea  as  well  as  on  land  ;  but  the  subcommis- 
sion  decided  that  its  duty  was  solely  to  revise  the  laws  of 
warfare  upon  land.1 

The  Brussels  rule,  that  "ruses  of  war  and  the  use  of 
means  of  procuring  information  about  the  enemy  and 
the  country  are  considered  legitimate"  (Article  24),  was 
adopted  without  discussion  or  definition. 

1  An  account  of  the  United  States  delegation's  more  formal  endeavor  and 
its  result  has  already  been  given  on  pages  126-133. 


234  THE  TW0   HAGUE   CONFERENCES 

Siege,  assault,  and  bombardment,  as  means  of  injuring 
the  enemy,  were  carefully  regulated.  It  was  unanimously 
agreed  to  prohibit  the  attack  or  bombardment  of  towns, 
villages,  dwellings,  or  buildings  which  are  not  defended 
(Article  25).  General  Poortugael,  of  the  Netherlands, 
proposed  to  prohibit  also  the  bombardment  of  such  places 
by  naval  forces  as  well  as  by  armies.  Delegates  from 
Belgium  and  Italy  supported  this  proposition ;  and  when 
they  were  reminded  that  the  subcommission  had  decided,  in 
the  case  of  the  seizure  and  destruction  of  private  property, 
that  its  duty  was  solely  to  revise  the  laws  of  warfare  upon 
land,  they  replied  that  bombardment  of  a  town,  even  from 
the  sea,  pertained  to  land  warfare,  as  much  or  more  than  to 
naval ;  that  it  is  warfare  within  territorial  waters ;  that  even 
when  it  is  from  the  sea  its  object  is  to  affect  land  operations ; 
and  that  when  marines  are  disembarked  they  become  by 
that  fact  land  troops.  In  spite  of  these  ingenious  argu- 
ments, it  was  decided  to  consider  the  question  as  one  per- 
taining to  naval  warfare  and  to  refer  it  to  another  conference. 

Before  commencing  a  bombardment,  except  in  the  case 
of  an  assault,  the  commander  of  the  attacking  force  is 
required  to  do  all  that  he  can  to  warn  the  authorities; 
he  must  take  all  necessary  measures  to  protect,  as  far  as 
possible,  buildings  devoted  to  religion,  art,  science,  or 
charity,  and  hospitals  and  other  places  where  the  sick  and 
wounded  are  collected  ;  these  buildings  are  all  to  be  spared, 
provided  they  are  not  used  at  the  time  of  the  bombard- 
ment for  military  purposes,  and  the  besieged  are  expected 
to  indicate  them  by  special  signs  visible  and  notified  in 
advance  to  the  besiegers  (Articles  26  and  27). 

The  pillage  of  a  town  or  place,  even  when  taken  by 
assault,  is  prohibited  (Article  28). 


WARFARE   ON   LAND  235 

b.    The  Conference  of  igoy 

Two  more  means  of  injuring  the  enemy  were  added  to 
the  list  of  prohibitions  adopted  in  1899. 

The  German  delegation  proposed  to  prohibit  the  re- 
pudiation (as  extinguished,  suspended,  or  non-receivable) 
of  the  private  claims  of  the  subjects  of  hostile  powers.  The 
argument  advanced  in  favor  of  this  proposition  was  that 
its  adoption  would  prevent  the  passage  of  laws  in  time  of 
war  which  make  it  impossible  for  the  subject  of  a  hostile 
state  to  enforce  the  execution  of  a  contract  by  resort  to 
the  courts  of  his  country's  enemy.  The  subcommission 
regarded  this  proposition  as  a  fortunate  expression  of  one 
of  the  results  of  the  principles  established  in  1899,  and 
adopted  it  unanimously,  with  the  modification  of  the 
use  of  the  words  "rights  and  actions  at  law"  instead  of 
"private  claims."  It  rejected  the  Russian  proposal  to 
make  this  prohibition  conditional  on  the  said  subjects 
not  taking  part  directly  or  indirectly  in  the  war ;  its  com- 
mittee rejected,  also,  another  Russian  proposition  to  per- 
mit, under  certain  circumstances,  a  belligerent  to  seize 
an  enemy's  credits  or  claims  which  might  be  used  to 
prolong  the  war. 

The  second  prohibited  means  of  injuring  the  enemy 
was  proposed  by  the  German  delegation.  The  proposi- 
tion was  adopted  and  was  added  to  Article  23  under  the 
following  form :  "A  belligerent  is  also  forbidden  to  compel 
the  subjects  of  its  enemy  to  take  part  in  the  operations 
of  the  war  directed  against  their  country,  even  when  they 
have  been  in  the  belligerent's  service  before  the  war  com- 
menced." The  rule  of  1899  forbade  any  compulsion  to 
be  exerted  upon  the  population  of  an  occupied  territory 


236      THE  TWO  HAGUE  CONFERENCES 

to  take  part  in  military  operations  against  their  country 
(Article  44) ;  while  the  German  amendment  of  1907 
extended  this  rule  to  all  the  subjects  of  the  hostile  party, 
whether  residing  in  their  own  country,  occupied  by  the 
belligerent,  or  residing  anywhere  else  within  the  bellig- 
erent's power.  The  arguments  advanced  in  support 
of  this  amendment  were  that  soldiers  retained  by  force 
within  the  ranks  of  an  army  can  be  only  a  source  of  weak- 
ness to  it;  and  that,  even  if  this  were  not  true,  the  de- 
mands of  justice  and  humanity  made  upon  warfare  would 
prevent  such  a  measure.  This  principle  was  admitted 
without  much  discussion,  and  the  German  amendment 
was  adopted  unanimously. 

But  when  the  Austrian  delegation  proposed  to  restrict 
the  German  amendment  to  the  provision  that  a  bellig- 
erent should  be  forbidden  to  compel  its  enemy's  subjects 
to  take  part  as  soldiers  in  the  operations  of  the  war  directed 
against  their  own  country,  and  thus  made  it  permissible 
for  a  belligerent  to  exact  other  services  from  its  enemy's 
subjects  against  their  country,  a  long  discussion  arose. 
In  the  course  of  this  discussion,  the  German  amendment 
itself  was  imperiled ;  and,  although  the  Austrian  propo- 
sition was  finally  withdrawn,  it  caused  seven  delegations 
to  withhold  their  vote  and  signature  from  an  amendment 
which  was  afterwards  adopted  in  regard  to  the  services 
rendered  to  belligerents  by  the  people  of  the  territory 
occupied  by  them  (Article  44). x 

When  the  renewal  of  the  declaration  of  1899,  which 
prohibited  for  a  term  of  five  years  the  hurling  of  projectiles 

1  For  an  account  of  this  later  amendment  (Article  44)  and  the  opposition 
to  it  (which  was  practically  the  support  of  the  Austrian  amendment  to  Article 
23),  see  pages  256-259. 


WARFARE    ON   LAND  237 

and  explosives  from  balloons,  came  up  for  discussion, 
the  Russian  and  Italian  delegations  proposed  that  it 
should  be  forbidden,  forever,  to  bombard  undefended  towns, 
etc.,  either  by  artillery  or  by  the  launching  of  projectiles  or 
explosives  from  balloons.  The  direful  results  of  such 
bombardment  were  emphasized,  and  the  injuries  it  would 
inflict  upon  non-combatants  and  neutrals,  and  upon 
useful  and  beautiful  public  buildings,  were  pointed  out. 
M.  Renault,  of  France,  declared  that  the  prohibition  of 
the  bombardment  of  undefended  towns,  etc.,  adopted  in 
1899,  included  bombardment  from  balloons  and  from 
every  other  source.  But  since  no  such  interpretation  had 
been  passed,  judicially,  upon  that  rule,  and  since  it  had 
been  expressly  adopted  as  applying  to  warfare  on  the  land 
and  not  to  warfare  on  the  sea,  the  commission  insisted 
on  amending  the  rule.  This  it  did  by  first  adopting  the 
Russo-Italian  proposition  by  a  vote  of  thirty-one  to  one, 
with  three  abstentions ; 1  and  at  the  next  session  by  voting 
unanimously  to  add  to  the  prohibition  of  1899  the 
words  "bombardment  by  any  means  whatever.'" 

The  commission  on  naval  warfare  had  already  agreed 
to  prohibit  the  bombardment  of  undefended  towns,  etc., 
by  naval  forces,2  and  had  added  to  the  list  of  buildings 
which  must  be  protected  in  case  of  the  bombardment 
of  defended  towns  historical  monuments.  This  last 
measure  had  been  adopted,  appropriately,  on  motion  of 
the  delegation  from  Greece;  and  when  M.  Beernaert, 
of  Belgium,  proposed  its  addition  to  the  laws  of  warfare 
on  land,  it  was  adopted  unanimously  and  without  dis- 
cussion. 

1  Cuba  cast  the  one  negative  vote;   France,  Sweden,  and  Turkey  abstained. 

2  Cf.  pages  100-104. 


238  THE  TWO   HAGUE   CONFERENCES 

4.   Spies,  Flags  of  Truce,  Armistice,  Capitulations 
a.    The  Conference  of  i8gg 

The  Brussels  rules  regarding  spies  were  adopted  almost 
intact.  They  first  define  a  spy  as  follows:  Only  that 
individual  can  be  considered  a  spy  who,  acting  clandes- 
tinely or  under  false  pretenses,  obtains  or  seeks  to  obtain 
information  in  a  belligerent's  zone  of  operations,  with 
the  intention  of  communicating  it  to  the  hostile  party. 
Thus,  soldiers  not  in  disguise  who  have  penetrated  into 
the  zone  of  operations  of  a  hostile  army  to  obtain  infor- 
mation are  not  considered  spies;  nor  are  soldiers  or 
civilians  who  openly  prosecute  their  mission  of  conveying 
dispatches  either  to  their  own  army  "or  that  of  the  enemy ; 
nor  are  individuals  sent  in  balloons  to  deliver  dispatches 
and  to  maintain  communication  between  the  various  parts 
of  an  army  or  a  territory  (Article  29). 

The  Brussels  rule  defining  a  spy  used  the  words  "in 
places  occupied  by  the  enemy"  instead  of  "in  a  bellig- 
erent's zone  of  operations."  Colonel  von  Schwarzhoff, 
of  Germany,  proposed  this  change  and  explained  that 
by  "zone  of  operations"  he  meant  the  territory  on  which 
is  an  army  either  in  march  or  in  repose,  and  including 
the  neighboring  districts  where  this  army  exercises  a  certain 
influence  by  the  reach  of  its  arms,  by  its  patrols,  and  by 
short  reconnoitering  expeditions.  M.  Beernaert,  of  Bel- 
gium, doubted  the  wisdom  of  thus  enlarging  the  scope 
of  the  definition  —  and  thus  increasing  the  perils  of  spies, 
—  but  withdrew  his  objection,  and  the  change  was  adopted. 

Colonel  Gilinsky,  of  Russia,  feared  that  by  excluding 
from  the  class  of  spies  those  civilians  who  openly  convey 


WARFARE   ON  LAND  239 

dispatches,  an  easy  way  would  be  opened  to  civilians  to 
act  as  real  spies  while  carrying  dispatches  as  a  pretext. 
He  therefore  moved  to  exclude  from  the  class  of  spies 
only  civilians  "attached  to  armies"  who  convey  dispatches, 
or  better  still  to  strike  out  the  clause  entirely.  But  the 
commission  voted  to  retain  the  clause  as  a  safeguard  against 
false  interpretations  injurious  to  civilians  who,  in  good 
faith,  carry  dispatches;  for  it  believed  that  those  acting 
on  false  pretenses  could  be  detected ;  and  these  may  be 
treated  as  spies. 

The  Brussels  rule  in  regard  to  the  trial  and  punishment 
of  spies  was  as  follows:  "The  spy  taken  in  the  act  will 
be  tried  and  dealt  with  according  to  the  laws  in  force  in 
the  army  which  has  seized  him."  General  Mounier,  of 
France,  demanded  the  suppression  of  this  rule  in  the 
Hague  convention,  for  the  reason  that  it  is  harsh  treat- 
ment to  condemn  a  spy  acting,  perhaps,  on  the  orders 
of  his  superiors  and  in  virtue  of  a  declaration  signed  by 
his  own  government.  This  argument  had  weight  with 
the  conference ;  for  it  did  not  prescribe  that  a  spy  should 
be  punished,  but  changed  the  rule  so  as  to  read :  A  spy 
taken  in  the  act  can  not  be  punished  without  previous 
trial  (Article  30).  The  conference  also  adopted  the 
Brussels  rule  that  a  spy  who,  after  rejoining  the  army  to 
which  he  belongs,  is  captured  by  the  enemy,  shall  be 
treated  as  a  prisoner  of  war  and  shall  incur  no  responsi- 
bility for  his  previous  acts  of  espionage  (Article  31). 

The  rights  and  duties  of  individuals  bearing  flags  of 
truce  are  briefly  stated.  They  must  be  authorized  by 
one  of  the  belligerents  to  enter  into  negotiations  with  the 
other,  and  must  be  accompanied  by  a  white  flag.  They 
have  a  right  to  inviolability,  as  have  also  the  trumpeter, 


240  THE  TWO   HAGUE   CONFERENCES 

bugler,  or  drummer,  the  flag  bearer,  and  the  interpreter 
who  may  accompany  him  (Article  32).  The  commander 
to  whom  a  flag  of  truce  is  sent  is  not  obliged  to  receive 
it  under  all  circumstances;  he  can  take  all  necessary 
steps  to  prevent  the  envoy  from  profiting  by  his  mission 
to  procure  information ;  and  in  case  of  abuse,  he  has  the 
right  to  detain  the  messenger  temporarily  (Article  33). 
The  messenger  loses  his  right  of  inviolability  if  it  is  posi- 
tively and  undeniably  proven  that  he  has  taken  advantage 
of  his  privileged  position  to  provoke  or  commit  an  act 
of  treason  (Article  34). 

Thus  far  the  Hague  rules  follow  those  of  Brussels  con- 
cerning the  bearers  of  flags  of  truce ;  but  another  Brussels 
rule  provided  that  a  commander  may  declare  in  advance 
that  he  will  not  receive  such  messengers  during  a  specified 
period,  and  that  if  they  come  to  him  during  that  period, 
and  after  his  declaration  had  been  received,  they  shall 
lose  their  right  of  inviolability.  Colonel  von  Schwarzhoff, 
of  Germany,  proposed  the  suppression  of  this  rule  for  the 
reason  that  circumstances  may  occur  which  make  the 
desirability  of  negotiating  with  the  enemy  superior  to  the 
enemy's  desire  to  receive  no  messengers;  Count  Nigra, 
of  Italy,  advocated  the  suppression  of  the  rule  for  the 
reason  that  it  is  opposed  to  the  spirit  of  international  law ; 
and  General  Mounier,  of  France,  favored  its  suppression 
for  the  reason  that  the  commander,  according  to  Article  t,^, 
is  not  obliged,  under  all  circumstances,  to  receive  flags  of 
truce.  The  rule  was  accordingly  suppressed  in  the  Hague 
convention,  —  with  the  remark  made  by  Colonel  von 
Schwarzhoff  that  Article  23  should  be  interpreted  to  mean 
that  a  commander  need  not  receive  a  flag  of  truce  within 
his  outposts. 


WARFARE   ON  LAND  241 

Armistices  were  defined  and  regulated  as  follows: 
An  armistice  is  a  suspension  of  military  operations  by 
mutual  agreement  between  the  belligerent  parties.  If 
its  duration  is  not  fixed,  the  belligerent  parties  may  resume 
operations  at  any  time,  provided  always  that  the  enemy 
is  warned  within  the  time  agreed  upon,  in  accordance 
with  the  terms  of  the  armistice  (Article  36).  An  armistice 
may  be  general  or  local.  The  first  suspends  all  military 
operations  of  the  belligerent  states ;  the  second,  only  those 
between  certain  fractions  of  the  belligerent  armies  and 
within  a  fixed  radius  (Article  37).  An  armistice  must  be 
notified  officially,  and  in  good  time,  to  the  competent 
authorities  and  the  troops;  and  hostilities  must  be  sus- 
pended immediately  after  the  notification,  or  at  a  fixed 
date  (Article  38).  The  contracting  parties  must  settle, 
in  the  terms  of  the  armistice,  what  communications  may 
be  held,  on  the  theater  of  war,  with  the  population  and 
with  each  other  (Article  39). 

The  Brussels  rules  provided  that  any  violation  of  the 
armistice  by  one  of  the  parties  gives  the  other  party  the 
right  to  denounce  it.  Colonel  von  Schwarzhoff  asserted 
that  a  simple  denunciation  of  the  armistice  is  not  sufficient 
in  all  cases  of  its  violation ;  for  example,  if  the  violation 
consists  in  a  sudden  attack  upon  a  troop  of  soldiers,  they 
would  not,  under  the  rule,  have  even  the  right  of  defending 
themselves.  This  is  an  extreme  case,  he  admitted ;  but 
other  cases  demand  not  only  the  right  of  denouncing  the 
armistice,  but  also  of  immediately  resuming  operations. 
M.  Rolin,  of  Siam,  opposed  this  addition  to  the  rule  for 
the  reason  that  it  is  desirable  now,  as  it  was  in  1874, 
to  forbid  a  resumption  of  hostilities  without  previous 
notice ;  and  General  Zuccari,  of  Italy,  said  that  the  denun- 


242  THE  TWO   HAGUE   CONFERENCES 

ciation  of  the  armistice  and  the  resumption  of  hostilities 
could  not  usually  be  performed  by  the  same  person,  since 
the  denunciation  is  intrusted  to  the  commander  in  chief, 
while  the  resumption  of  hostilities  would  depend,  in  the 
cases  referred  to,  upon  subordinate  officers.  It  was  con- 
tended, however,  that  only  the  right,  to  be  used  at  discre- 
tion, and  not  the  obligation,  to  resume  hostilities  immedi- 
ately, was  asked  for ;  and  when  Colonel  von  Schwarzhoff 
proposed  to  limit  the  exercise  of  this  right  to  "cases  of 
urgency,"  his  proposition  was  accepted,  and  the  rule 
adopted  as  follows :  Any  serious  violation  of  the  armistice 
by  one  of  the  parties  gives  to  the  other  party  the  right  to 
denounce  it  and  even,  in  case  of  urgency,  to  resume  hos- 
tilities immediately  (Article  40). 

The  Brussels  rule  was  adopted,  without  discussion,  that 
a  violation  of  the  terms  of  the  armistice  by  private  in- 
dividuals acting  on  their  own  initiative  only  confers  the 
right  of  demanding  the  punishment  of  the  offenders,  and, 
if  losses  are  sustained,  an  indemnity  for  them  (Article  41). 

Capitulations  were  regulated  by  one  of  the  Brussels 
rules,  and  this  one  was  adopted,  with  slight  modification, 
in  1899.  It  provides  that  capitulations  agreed  on  between 
the  contracting  parties  should  take  into  consideration  the 
rules  of  military  honor;  and  when  once  agreed  upon, 
they  must  be  scrupulously  observed  by  both  parties 
(Article  35).  Objection  was  made  to  this  rule  on  the 
ground  that  it  is  unnecessary  and  also  vague,  as  it  is 
very  difficult,  to  define  the  idea  of  "military  honor,"  —  to 
which,  according  to  the  Brussels  rule,  capitulations 
should  not  be  opposed.  But  M.  Rolin,  of  Siam,  stated 
his  adherence  to  the  opinion  of  the  delegate  of  France 
in   1874,  that  the  rule  was  highly  important  and  that 


WARFARE   ON  LAND 


243 


emphasis  should  be  laid  on  the  idea  of  honor.  M.  Zenil, 
of  Mexico,  suggested  that  capitulations  might  be  required 
"to  conform  to  the  military  honor  of  the  conqueror's 
code" ;  but  this  suggestion  was  rejected  for  the  reason  that 
the  conqueror  may  not  have  any  code,  or  that  statements 
as  to  honor  might  not  be  contained  in  it.  Finally,  on  the 
suggestion  of  Turkhan  Pacha,  of  Turkey,  the  phrase, 
"should  take  into  consideration  the  rules  of  military 
honor,"  was  adopted. 

b.   The  Conference  of  1  go  j 

The  rules  of  1899  in  regard  to  spies,  flags  of  truce,  and 
armistice  were  not  amended  in  1907.  The  Netherlands 
delegation  proposed  the  following  addition  to  the  rule 
regarding  capitulations:  Detachments  of  an  army  ca- 
pitulated to  the  enemy  are  not  obliged  to  surrender  if 
they  are  at  such  a  distance  from  it  as  to  have  retained 
liberty  of  action  sufficient  to  continue  the  struggle  inde- 
pendently of  the  principal  corps.  The  weight  of  opinion 
was  against  this  proposition  as  dealing  with  a  matter  which 
should  be  regulated  by  the  terms  of  each  capitulation,  and 
it  was  withdrawn  without  being  voted  on. 

5.   Occupation  of  Hostile  Territory 

a.   The  Conference  of  i8gg 

On  the  threshold  of  the  discussion  of  the  rules  regulating 
the  occupation  of  a  country  by  its  invader,  M.  Beernaert, 
of  Belgium,  opposed  the  policy  of  laying  down  such  rules 
lest,  by  so  doing,  the  conference  might  sanction  the  right 
of  conquest  and  organize  the  regime  of  defeat.     He  was 


244      THE  TW0  HAGUE  CONFERENCES 

himself  a  member  of  the  Conference  of  Brussels  whose 
rules  were  taken  as  the  basis  of  those  adopted  in  1899, 
and  he  said  of  its  rules  regulating  occupation : 

"The  idea  which  inspired  them  was,  as  in  the  case  of  the  other  rules, 
a  wholly  humanitarian  one.  The  endeavor  was  to  reduce  as  much  as 
possible  the  evils  of  an  invasion  by  regulating  it,  or,  rather,  by  canaliz- 
ing it;  but,  to  secure  this  end,  it  was  desired  that  the  vanquished 
should  admit  in  advance  the  rights  of  the  invader  upon  their  territory, 
and  that  it  should  be  in  some  sort  forbidden  to  populations  to  mingle 
in  the  war.  Hence,  gentlemen,  arose  grave  difficulties  which  long 
arrested  the  progress  of  the  plenipotentiaries  assembled  at  Brussels 
in  1874,  and  which  prevented  their  ultimate  success  [that  is,  the  adop- 
tion of  their  projected  rules].  ...  It  is  not  that  I  wish  to  criticise 
the  facts.  Things  have  always  been  thus  and  will  continue  to  be  the 
same,  no  doubt,  so  long  as  humanity  will  not  discard  warfare.  But, 
although  it  is  natural  that  the  conqueror  should  exert  his  power  over 
the  vanquished  in  the  flush  of  victory,  I  can  not  comprehend  an  inter- 
national agreement  giving  him  the  right  to  do  so.  And  I  think  that 
such  an  idea  would  be  ill  received  by  the  parliaments  which  have  to 
approve  our  work.  .  .  .  The  country  invaded  submits  to  the  law 
of  the  invader;  that  is  a  fact;  it  is  might;  but  we  should  not  legalize 
the  exercise  of  this  power  in  advance,  and  admit  that  might  makes 
right.  It  is  not  credible  that  the  conqueror  should  legislate,  adminis- 
trate, punish,  levy  taxes,  with  the  previous  consent  and  authorization 
of  the  conquered.  All  that  kind  of  thing  becomes  regular  only  on  the 
conclusion  of  peace ;  for  then  only,  if  a  treaty  confirms  the  conquest, 
will  new  legal  rights  be  established. 

"The  interest  of  the  country  occupied,  and  especially  that  of  the 
smaller  countries,  has  been  appealed  to.  Speaking,  then,  in  the  name 
of  a  small  country,  often  trampled  and  cruelly  trampled  by  invasion, 
we  prefer  to  bear  the  ills  we  have  than  fly  to  those  we  know  not  of." 

The  commission's  president,  Professor  de  Martens, 
of  Russia,  who  had  also  been  a  member  of  the  Brussels 
Conference,  replied  to  M.  Beernaert's  address  by  saying, 
in  part : 


WARFARE    ON   LAND  245 

"If  the  laws  of  war  exist  —  and  no  one  disputes  that  fact  —  it  is 
absolutely  necessary  that  an  agreement  should  be  made  for  their 
definition.  Animated  by  a  common  desire  to  carry  our  torches  into 
an  investigation  of  these  laws  and  customs  of  warfare,  we  have  thus 
far  worked  together  in  that  task,  and  we  have  been  able  to  solve  the 
majority  of  the  questions  submitted  to  us.  Now,  when  we  have 
arrived  at  the  most  important  articles  of  the  Declaration  of  Brussels, 
it  would  be  a  misfortune  to  leave  in  utter  chaos  the  questions  con- 
nected with  the  articles  concerning  occupation  and  combatants."  ' 

M.  Beernaert  had  previously  expressed  his  opinion  that 
only  those  rules  should  be  adopted  which,  admitting  the 
existence,  without  acknowledging  the  right,  of  the  con- 
queror, should  embody  his  agreement  to  moderate  the 
conditions  of  conquest.  And  it  was  entirely  in  this  spirit 
that  the  subcommission,  after  President  de  Martens's 
address,  took  up  the  work  of  regulating  the  occupation 
of  hostile  territory. 

It  first  adopted  a  definition  of  occupied  territory  as 
follows:  Territory  is  considered  occupied  when  it  is 
placed  de  facto  under  the  authority  of  the  hostile  army. 
The  occupation  applies  only  to  the  territory  where  such 
authority  is  established,  and  is  of  sufficient  strength  to 
assert  itself  (Article  42).  Colonel  von  Schwarzhoff,  of 
Germany,  opposed  the  second  paragraph  of  this  definition 
on  the  ground  that  it  was  too  restrictive  and  would  exclude, 
for  example,  territory  where  a  belligerent  has  pretty  well 
established  his  authority,  but  where  communications 
between  his  occupying  corps  and  the  rest  of  his  forces 
are  interrupted  and  where  revolts  may  arise  and  tempo- 
rarily succeed.  "Under  these  circumstances,"  he  said, 
"it  can  not  be  sustained  that  the  territory  is  not  occupied." 

1  Other  portions  of  this  impressive  address  are  quoted  on  pages  217-219. 


246      THE  TWO  HAGUE  CONFERENCES 

Colonel  Gilinsky,  of  Russia,  emphasized  this  military 
point  of  view  by  saying  that  an  army  considers  a  territory 
as  occupied  when  there  are  present  in  it  either  the  bulk  of 
the  army  or  some  of  its  detachments,  and  when  its  lines  of 
communication  are  assured ;  on  this  territory  the  occupy- 
ing army  leaves  some  troops  to  protect  its  communications 
as  it  proceeds;  these  troops  are  often  so  few  in  number 
that  a  revolt  becomes  possible;  but  the  fact  that  such  a 
revolt  may  occur  can  not  prevent  the  occupation  from 
being  considered  as  existing  de  facto. 

To  these  military  arguments  the  jurists  opposed  their 
reasons  for  retaining  the  second  paragraph  of  the  definition  : 
that  it  is  necessary  to  give  the  definition  any  meaning; 
and  that  when  "authority"  is  not  of  sufficient  strength 
to  sustain  itself  it  is  not  "established"  in  the  territory, 
and  the  territory  is  in  no  true  sense  "occupied."  The 
colonels  yielded  their  opinion  in  this  matter  to  the  juris- 
consults, and  the  definition  as  stated  was  retained. 

The  treatment  of  occupied  territory  was  regulated  by 
a  series  of  articles,  which  may  be  considered  under  the 
three  heads :  Treatment  in  general ;  the  exaction  of  taxes, 
contributions,  etc. ;  and  the  treatment  of  public  property. 
Under  the  head  of  general  treatment  it  was  provided  that, 
the  power  of  legal  authority  having  passed  de  facto  into 
the  hands  of  the  occupant,  the  latter  shall  take  all  the 
steps  in  his  power  to  reestablish  and  insure,  as  far  as  pos- 
sible, public  order  and  safety,  at  the  same  time  respecting, 
unless  absolutely  impossible,  the  laws  in  force  in  the  country 
(Article  43).  The  adoption  of  this  rule  from  the  Brussels 
code  was  opposed  on  the  general  principle  stated  in  M. 
Beernaert's  address  above  quoted,  and  an  attempt  was 
made    to    preserve    the    country's   laws    unconditionally; 


WARFARE   ON   LAND  247 

but  the  rule  was  voted  as  stated  by  a  slender  majority.1 
The  subcommission  rejected,  by  a  much  stronger  ma- 
jority, and  for  other  reasons  than  M.  Beernaert's  general 
principle,  the  Brussels  rule  that  the  officials  and  employees 
of  every  kind,  who  accept  the  invader's  invitation  to  con- 
tinue their  services,  shall  enjoy  his  protection  and  shall  be 
dismissed  or  disciplined  only  in  case  they  fail  in  the  obliga- 
tions accepted  by  them,  and  delivered  up' to  justice  only  in 
case  they  are  guilty  of  treason  towards  those  obligations. 
This  rule  was  first  rejected  by  a  vote  of  fifteen  to  seven ; 
but  in  the  next  session,  Captain  Crozier,  of  the  United 
States,  said  that  although  he  had  voted,  provisionally,  for 
its  rejection,  since  it  had  no  value  for  his  own  country, 
which  was  under  no  risk  of  invasion,  he  would  now  re- 
consider his  vote  and  advocate  the  rule's  retention.  This 
statement  led  to  considerable  discussion  for  and  against 
the  retention  of  the  rule ;  but  this  discussion  was  ended 
and  the  rule  was  unanimously  rejected,  as  the  result  of 
a  remark  made  by  Professor  Veljkovitch,  of  Servia,  that 
the  question  had  been  already  settled  by  the  rule  that  the 
invader  shall  respect  the  country's  laws,  since  respect  for 
the  laws  of  a  country  implies  the  retention  of  officials 
named  by  virtue  of  those  laws. 

The  invader  is  forbidden  to  compel  the  population  of 
an  occupied  territory  to  take  part  in  military  operations 
against  their  own  country  (Article  44).  Colonel  Gilinsky, 
of  Russia,  desired  to  make  this  prohibition  apply  only  to 
direct  participation  in  military  operations  on  the  field  of 
battle ;  he  feared  the  rule  would  prevent  a  belligerent  from 
compelling  an  inhabitant  to  supply  him  with  vehicles,  horses, 
etc.     M.  Beernaert,  of  Belgium,  advocated  the  rule  as  it 

1  The  subcommission  afterwards  adopted  this  article  by  unanimous  vote. 


248  THE   TWO   HAGUE   CONFERENCES 

stands,  because  it  forbids  compulsion  of  both  direct  and 
indirect  participation  in  the  military  operations;  but  he 
admitted  that  belligerents  may,  under  the  rule,  compel 
inhabitants  to  submit  to  such  measures  as  the  requisition 
of  their  vehicles  and  horses.  Colonel  von  Schwarzhoff 
also  advocated  the  adoption  of  the  rule,  which,  he  said, 
concerned  only  populations  as  a  whole  and  not  individuals, 
and  which  does  not  deprive  belligerents  of  the  right  of 
exacting  from  individuals  such  services  as  those  of  a  guide. 
In  view  of  these  interpretations  of  the  rule,  Colonel  Gilin- 
sky  withdrew  his  opposition  to  it. 

The  rule  forbidding  any  pressure  on  the  population  of 
occupied  territory  to  take  an  oath  of  allegiance  to  the  hostile 
power  (Article  45)  was  adopted  unanimously,  and  without 
discussion.  It  was  at  first  thought  to  be  in  conflict  with 
the  United  States  General  Order  No.  100  regarding  an 
oath  of  allegiance  and  fidelity  on  the  part  of  magistrates 
and  other  civil  officers;  but  later  this  was  deemed  not  to 
be  the  case,  since  the  Hague  rule  mentions  only  "the  popu- 
lation." 

The  honor  and  rights  of  families,  the  life  of  individuals, 
and  private  property,  as  well  as  religious  convictions  and 
freedom  of  worship,  must  be  respected ;  and  private  prop- 
erty may  not  be  confiscated  (Article  46).  Colonel  von 
Schwarzhoff,  of  Germany,  desired  to  add  to  this  rule  the 
qualification  "as  far  as  military  necessities  permit";  and 
stated,  in  behalf  of  this  addition,  that  a  belligerent  should 
have  the  right,  in  compelling  an  individual,  to  threaten  him 
with  death,  and  that  the  necessities  of  war  will  not  always 
permit  respect  to  all  religious  convictions.  Chevalier 
Descamps,  of  Belgium,  replied  that  it  would  be  opposed  to 
the  spirit  of  the  code  to  introduce  into  its  various  articles 


WARFARE    ON   LAND 


249 


a  special  clause  for  the  sake  of  the  "necessities  of  war"; 
and  that  the  destruction  of  individual  rights  can  not  be 
admitted  as  a  juristic  thesis,  although,  necessity  arising, 
recourse  must  be  had  to  it  at  times.  Colonel  von 
Schwarzhoff  responded  that  he  would  be  satisfied  with  the 
rule  if  that  were  its  interpretation.  The  rule  was  then 
adopted  without  further  comment  on  its  meaning. 

Article  47  states  concisely  that  "pillage  is  expressly  for- 
bidden." Thus  the  rule  forbidding  pillage  in  captured 
towns  (Article  28)  was  extended  to  the  entire  territory 
invaded. 

The  treatment  of  occupied  territory  as  regards  the  collec- 
tion of  taxes  and  other  contributions  was  dealt  with  in  a 
series  of  five  articles.  The  first  of  these  provides  that  if, 
in  the  territory  occupied,  the  occupant  collects  the  taxes, 
dues,  and  tolls  imposed  for  the  benefit  of  the  state,  he  shall 
do  it,  as  far  as  possible,  in  accordance  with  the  rules 
of  assessment  and  distribution  in  force;  and  he  shall  be 
required  in  return  for  such  collection  to  defray  the  expenses 
of  the  administration  of  the  occupied  territory  on  the  same 
scale  as  that  by  which  the  legal  government  was  bound 
(Article  48).  This  rule  was  adopted,  with  verbal  changes, 
from  the  Brussels  code,  and  when  first  proposed  eleven 
delegations  voted  for  it,  and  eleven  against  it5  with  two 
abstentions;  after  a  long  debate,  chiefly  concerning  its 
form,  it  was  adopted  by  a  vote  of  eighteen  to  six,  which  vote 
was  later  made  unanimous. 

The  regulation  of  exactions  over  and  above  the  regular 
taxes  was  the  subject  of  an  animated  debate.  A  half-dozen 
propositions  were  made  regarding  it,  and  at  least  three  dif- 
ferent points  of  view  were  emphasized.  M.  van  Karne- 
beek,  of  the  Netherlands,  favored  the  exaction  of  provi- 


250  THE  TWO   HAGUE   CONFERENCES 

sions,  or  contributions  in  kind,  because  "it  is  a  military 
necessity  to  subsist  one's  troops";  but  he  opposed  the 
exaction  of  money  contributions,  except  in  payment  of 
the  regular  taxes,  because  "private  property  should  be  re- 
spected, war  should  not  be  permitted  to  live  by  war,  the 
inhabitant  of  occupied  territory  should  not  be  made  to  pay 
the  cost  of  the  war,  and  the  spirit  of  the  Conference  of 
1874  was  opposed  to  the  evil  system,  introduced  about 
1800,  by  which  money  contributions  were  exacted  for  the 
enrichment  of  the  belligerent." 

On  the  other  hand,  Colonel  von  Schwarzhoff,  of  Germany, 
opposed  the  exaction  of  provisions,  and  favored  the  exac- 
tion of  money.  He  explained  that  in  an  occupied  territory 
there  are  three  ways  of  getting  supplies  for  the  occupying 
army.  First,  a  community  may  be  ordered  collectively  to 
furnish  a  certain  number  of  rations,  or,  second,  individual 
inhabitants  may  be  required  to  deliver  directly  the  live- 
stock, food,  etc.,  which  they  possess.  Now  both  of  these 
methods,  especially  the  second,  are  very  distasteful  to  the 
inhabitants,  are  often  unjust  (because  the  poor  peasant  may 
be  compelled  to  give  up  the  only  cow  he  possesses,  while 
the  wealthy  townsman  gives  up  only  the  little  food  which 
he  may  chance  to  have  in  his  house  at  the  time),  and, 
finally,  they  are  both  inefficient.  Hence,  a  third  method 
of  procedure  has  been  adopted ;  this  is  to  establish  public 
markets  in  which  the  officers  purchase,  for  cash  and  at 
higher  prices  than  prevail  at  the  time,  the  products  which 
the  inhabitants  bring  in  for  sale.  This  method  is  more 
humane,  because  the  poor  man  receives  at  once  the  money 
for  his  produce ;  and  it  is  more  efficient,  because  the  in- 
habitants bring  in  their  produce  willingly,  and  even  bring 
in  that  which  they  have  carefully  stowed  away.     Now,  to 


WARFARE   ON   LAND 


25i 


pursue  this  last  method,  money,  and  much  money,  is 
needed,  and  it  must,  perforce,  be  exacted.  Professor 
Lammasch,  of  Austria,  also  supported  Colonel  von  Schwarz- 
hoff 's  point  of  view,  but  for  the  very  different  reason  that 
exactions  of  money,  by  exhausting  the  strength  of  the  ad- 
versary, would  aid  greatly  in  putting  an  end  to  the  war. 
"The  dead  can  not  be  restored  to  life,"  he  said,  "nor  can 
arms  and  legs  be  given  back  to  those  from  whom  they  have 
been  amputated;  but  those  who  have  given  money  con- 
tributions can  be  compensated." 

The  third  point  of  view  was  emphasized  by  the  Belgian 
delegates,  M.  Beernaert  and  the  Chevalier  Descamps,  who 
were  opposed  to  the  adoption  of  any  rule  at  all  regarding 
other  exactions  than  the  regular  taxes.  They  recognized, 
as  a  fact,  the  exaction  of  both  money  and  provisions  from 
the  vanquished ;  but  they  opposed  a  "consecration  by  law 
of  that  which,  up  to  the  present,  has  been  only  in  the  realm 
of  fact."  Especially  did  they  condemn  Professor  Lam- 
masch's  argument  as  particularly  dangerous,  because  it 
would  lead  to  the  entire  destruction  of  commerce. 

In  the  midst  of  this  serious  conflict  of  opinions  and  prop- 
ositions, M.  Bourgeois,  of  France,  pointed  out  that  there 
were  two  principles  on  which  all  parties  were  in  accord : 
first,  that  of  not  conferring  the  character  of  right  upon 
what  is  only  a  fact,  the  fact  of  war;  and  second,  that  of 
diminishing  the  burdens  which  this  fact  of  war  entails 
upon  the  population  of  invaded  territory.  He  proposed, 
therefore,  that  a  small  committee  be  appointed  to  find 
some  rule,  embodying  these  two  principles,  which  would  be 
acceptable  to  all  parties.  His  proposition  was  adopted, 
and  the  committee  reported,  unanimously,  four  rules  which 
were  adopted  by  vote  of  all  the  delegations  except  that  of 


252      THE  TWO  HAGUE  CONFERENCES 

Switzerland.  Switzerland's  first  delegate  had  been  a 
member  of  the  committee  which  reported  the  four  rules, 
but  he  explained  that  since  the  committee  adjourned  he 
had  received  positive  instructions  from  his  government  to 
vote  against  three  of  the  rules  unless  the  subcommission 
would  adopt  the  requirement  that  contributions  shall  be 
compensated  for  at  the  end  of  the  war.  The  subcommis- 
sion declined  to  do  this,  for  the  reason  that  such  a  require- 
ment has  to  do  with  the  domestic  affairs  of  each  state, 
and  an  international  convention  should  not  interfere  be- 
tween a  state  and  its  own  subjects.  The  Swiss  delegates, 
accordingly,  obeyed  their  instructions  and  cast  the  single 
minority  vote  against  the  four  rules,  with  the  exception  of 
Article  50  and  the  first  two  paragraphs  of  Article  52,  which 
were  voted  unanimously.1 

The  four  rules  which  had  been  the  subject  of  so  much 
discussion  are  as  follows:  If,  besides  the  taxes  mentioned 
in  Article  48,  the  occupant  levies  other  money  taxes  in  the 
occupied  territory,  this  can  be  done  only  for  the  needs  of 
the  army  or  for  the  administration  of  such  territory  (Ar- 
ticle 49). 

No  general  penalty,  pecuniary  or  other,  can  be  inflicted 
on  the  population  on  account  of  the  acts  of  individuals  for 
which  it  can  not  be  regarded  as  collectively  responsible 
(Article  50).  No  contribution  shall  be  collected  except 
under  a  written  order  and  on  the  responsibility  of  a  com- 
mander in  chief.  This  collection  shall  take  place,  as  far 
as  possible,  only  in  accordance  with  the  rules  of  assessment 
and  distribution  in  force.  A  receipt  shall  be  given  to  every 
contributor  for  what  he  has  delivered  (Article  51). 

1  The  Swiss  government  did  not  give  in  its  adhesion  to  the  code  of  laws 
adopted  in  1899  until  the  time  of  the  Conference  of  1907. 


WARFARE    ON   LAND 


253 


Neither  contributions  in  kind  nor  services  can  be  de- 
manded from  communities  or  inhabitants,  except  for  the 
needs  of  the  army  of  occupation.  They  must  be  in  pro- 
portion to  the  resources  of  the  country,  and  of  such  a  nature 
as  not  to  require  the  population  to  take  part  in  the  opera- 
tions of  the  war  against  their  country.  These  requisi- 
tions and  services  shall  be  demanded  only  on  the  authority 
of  the  commander  in  the  locality  occupied.  Contributions 
in  kind  shall  be  paid  for,  as  far  as  possible,  in  cash ;  if  not 
so  paid  for,  receipts  shall  be  given  for  them  (Article  52). 

The  last  series  of  rules  adopted  for  the  regulation  of  the 
occupation  of  hostile  territory  deals  with  the  treatment  of 
public  property.  They  provide  that  not  all  public  prop- 
erty, but  only  such  as  is  of  a  nature  to  be  used  for  the 
operations  of  the  war,  may  be  seized  by  the  army  of  occupa- 
tion (Article  53,  paragraph  1).  The  occupying  government 
shall  be  regarded  only  as  administrator  and  usufruc- 
tuary of  public  buildings,  real  property,  forests,  and  agri- 
cultural works  belonging  to  the  hostile  state  and  located 
within  the  country  occupied.  It  must  protect  the  capital 
of  these  properties,  and  administer  it  according  to  the  rules 
of  trusteeship  (Article  55). 

The  property  of  municipalities,  that  of  religious,  char- 
itable, and  educational  institutions,  and  those  of  arts  and 
sciences,  even  when  state  property,  shall  be  treated  as 
private  property.1  All  seizure,  destruction,  or  intentional 
damage  of  such  institutions,  historical  monuments,  and 
works  of  art  or  science,  is  forbidden  and  should  be  pun- 
ished (Article  59).  When  this  rule  was  adopted,  General 
Mirza  Riza  Khan,  of  Persia,  desired  to  know  what  was 
meant  by  "religious  institutions,"  and  if  it  would  be  con- 

1  That  is,  shall  be  respected  and  not  confiscated ;  see  Article  46. 


254  THE   TWO   HAGUE   CONFERENCES 

sidered  to  include  mosques;  the  subcommission  accepted 
the  statement  made  in  reply,  that  no  distinction  whatever 
must  be  made  between  the  various  religions,  and  that  the 
expression  applies  equally  to  mosques.  The  Brussels  rule 
in  regard  to  the  seizure  and  damage  of  religious  institutions, 
and  of  historical  monuments,  works  of  art,  etc.,  merely 
provided  that  such  seizure  and  damage  "should  be  pun- 
ished by  the  competent  authorities."  The  Hague  rule 
forbids  such  acts,  and  also  requires  their  punishment. 
In  this,  it  goes  farther  than  the  United  States  General 
Order  No.  ioo,  which  permitted  the  removal  of  works  of 
art  and  science,  etc.,  for  the  benefit  of  the  government  of 
the  occupying  army  and  relegated  the  ultimate  settlement 
of  their  ownership  to  the  treaty  of  peace. 

Railroad  plants,  telegraphs,  telephones,  steamers  and 
other  boats  (except  when  governed  by  maritime  law),  as 
well  as  depots  of  arms  and  all  kinds  of  war  material,  are 
admitted  to  be  liable  to  be  used  by  the  occupying  army  for 
the  operations  of  the  war,  even  though  they  are  the  property 
of  companies  or  private  individuals;  but  they  must  be 
restored  and  compensated  for  on  the  conclusion  of  peace 
(Article  53,  paragraph  2).  M.  Beernaert,  of  Belgium,  op- 
posed this  rule  on  the  ground  that  it  was  inconsistent  with 
the  inviolability  of  private  property,  which  had  already 
been  admitted ;  and,  since  the  Belgian  constitution  also 
protected  the  inviolability  of  private  property,  except  in 
case  of  expropriation,  it  would  be  all  the  more  difficult,  he 
said,  for  his  delegation  to  accept  it.  The  subcommission, 
however,  regarded  such  property,  even  though  in  private 
hands,  as  quasi-public,  or  as  too  obviously  useful  for  military 
purposes  to  be  made  inviolable,  and  the  most  it  would  con- 
cede to  the  opposition  was  to  reject  the  Brussels  statement 


WARFARE   ON   LAND 


255 


that  "it  can  not  be  left  by  the  army  of  occupation  at  the  dis- 
position of  the  enemy."  The  Hague  rule  added  to  the  list 
of  such  property  telephones,  which  were  not  included  in 
1874;  but  the  conference  rejected,  after  the  subcommis- 
sion,  commission,  and  conference  itself  had  once  added  to 
that  list,  the  landing  connections  of  submarine  cables.  M. 
de  Bille,  of  Denmark,  had  advocated  this  addition,  for  the 
reason  that  submarine  cables,  which  unite  the  belligerent 
with  other  countries,  should  enjoy  the  same  international 
protection  as  that  accorded  to  telegraphs.  The  Danish 
delegate  to  the  Brussels  Conference  had  proposed  this 
same  addition  in  1874;  and  on  both  occasions  Denmark 
would  like  to  have  moved  for  the  protection  of  submarine 
cables  throughout  their  entire  length,  but  refrained  from 
asking  for  more  than  their  protection  within  the  limits  of 
the  maritime  territory  of  the  stale,  that  is,  within  three 
marine  miles  from  the  shore.  The  subcommission  re- 
jected the  last  part  of  the  Danish  proposition,  but  placed 
the  landing  connections  of  submarine  cables  in  the  list  of 
protected  property.  In  a  plenary  session  of  the  conference, 
Sir  Julian  Pauncefote,  of  Great  Britain,  stated  that  his 
government  viewed  such  an  addition  as  a  trespass  upon  the 
domain  of  maritime  affairs  and  as  being  outside  the  com- 
petence of  the  conference.  M.  de  Bille  then  said  that,  in 
a  spirit  of  conciliation,  and  to  secure  unanimity  in  the 
adoption  of  the  code,  he  would  withdraw  his  proposition, 
but  that  his  government  would  continue  its  efforts  to  secure 
international  protection  both  for  the  landing  connections 
of  submarine  cables  and  for  the  cables  themselves. 

Articles  54,  57,  58,  59,  and  60,  of  the  Code  of  Laws  of 
Warfare  on  Land,  have  to  do  with  railways  in  occupied 
territory  which  are  owned  by  neutrals,  and  with  the  deten- 


256  THE   TWO   HAGUE   CONFERENCES 

tion  of  belligerents  and  the  care  of  the  sick  and  wounded 
in  neutral  countries.1 


b.    The  Conference  of  igoy 

One  of  the  rules  of  1899  forbade  any  compulsion  of  the 
population  of  an  occupied  territory  to  take  part  in  military 
operations  against  their  own  country  (Article  44).  This 
prohibition  was  extended  in  1907,  on  motion  of  the  German 
delegation,  so  as  to  apply  to  belligerents  everywhere  and 
not  only  in  occupied  territory  (Article  23).  The  German 
delegation  proposed,  therefore,  that  Article  44  should  be 
suppressed  as  unnecessary ;  this  suppression  was  agreed 
to,  and  as  a  substitute  for  the  suppressed  article  the  Nether- 
lands delegation  proposed  the  following  rule :  A  belliger- 
ent is  forbidden  to  compel  the  population  of  an  occupied 
territory  to  give  information  concerning  the  army  of  the 
other  belligerent  or  its  means  of  defense. 

General  Poortugael,  of  the  Netherlands,  in  advocating 
this  rule,  urged  that  to-day,  with  networks  of  railways 
and  tramways  and  the  multitude  of  roads  and  canals  in 
every  direction,  an  officer  can  easily  find  out  where  he  is 
and  recover  his  way,  even  though  he  be  in  a  desert  or  in  a 
mountainous  country ;  that  there  are  excellent  topographi- 
cal charts  which  every  officer  and  even  every  sergeant  of 
patrols  can  possess;  that  it  is  not  necessary,  therefore,  as 
it  may  have  been  once,  to  compel  the  inhabitants  of  an 
invaded  territory  to  act  as  guides ;  that  a  far  better  way  for 
the  belligerent  to  gain  his  end,  and  in  the  minimum  of  time, 
is  to  induce  the  inhabitants  of  an  occupied  country  to  join 
his  forces  voluntarily, —  a  thing  which  can  not  be  achieved 

1  These  articles  are  discussed  on  pages  204-206  and  210-212. 


WARFARE    ON   LAND 


257 


by  forcing  them  to  commit  crimes  against  their  own  coun- 
try; and  that,  after  all,  if  a  state  has  not  sufficient  means 
for  making  war,  let  it  keep  the  peace,  or  make  peace  :  it  is 
not  for  a  Peace  Conference  to  facilitate  warfare.  General 
Amourel,  of  France,  also  emphasized  this  argument  by 
saying  that  compulsory  guides  are  often  more  dangerous 
than  useful  to  those  who  employ  them,  especially  when 
they  are  drafted  from  a  patriotic  or  a  fanatic  population. 
Colonel  Borel,  of  Switzerland,  added  his  opinion  that  from 
the  military  point  of  view  the  advantage  obtained  from  com- 
pulsory guides  is  little  or  none :  "To-day,  more  than  ever 
before,  everything  in  war  depends  upon  the  sovereign  and 
fundamental  factor  of  the  intellectual  and  moral  strength 
of  men;  whence  this  consequence,  that  voluntary  action 
alone  produces  good  results." 

Besides  this  military  argument,  General  Poortugael 
and  Colonel  Borel  advocated  the  Netherlands  proposition 
for  the  reason  that  to  force  an  inhabitant  of  an  occupied 
country  to  reveal  to  the  enemy  anything  important  in  re- 
gard to  his  fellow-countrymen  would  be  immoral  in  the 
highest  degree  :  "  It  is  not  for  us  to  raise  up  Ephialtes  !  .  .  . 
Let  us  reflect  on  the  fatal  position  of  such  unfortunate  in- 
habitants. .  .  .  On  one  hand,  if  they  betray  their  coun- 
try, they  are  guillotined,  hung,  or  imprisoned  for  life;  on 
the  other,  if  they  refuse  to  do  so,  they  are  shot."  We  forbid 
them  to  be  forced  into  bearing  arms  against  their  country, 
added  Colonel  Borel,  and  yet  it  is  incontestable  that  in 
guiding  the  enemy  an  individual  may  do  his  country  an 
infinitely  greater  injury,  and  thus  commit  a  graver  crime 
against  it,  than  if  he  fought  against  it  in  a  line  of  riflemen 
or  artillerists. 

Baron  von  Gieslingen,  of  Austria,  General  Yermolow, 


258  THE  TWO   HAGUE   CONFERENCES 

of  Russia,  and  Captain  Sturdza,  of  Roumania,  vigorously 
opposed  the  Netherlands  proposition  and  the  arguments 
advanced  in  its  favor.  They  urged  the  necessity  of  being 
sure  of  the  line  of  march  in  mountainous  countries,  such  as 
the  Balkan  Peninsula,  whose  passable  roads  are  not  found 
on  any  map ;  they  insisted  that  offensive  action  is  to-day, 
as  always,  the  basis  of  success ;  that  such  action  is  best  in 
the  enemy's  territory ;  that  a  march  into  that  territory  neces- 
sitates services  from  the  inhabitants,  not  only  to  find  the 
way  and  the  enemy,  but  to  build  or  repair  roads  and  bridges, 
to  throw  up  fortifications  in  haste,  to  conduct  baggage  and 
commissary  trains,  etc.  "These  necessities  of  war,"  said 
Colonel  Sturdza,  "are  imperative,  and  commanders  respon- 
sible for  success  would  be  placed  in  the  position  of  choos- 
ing between  the  imperative  duty  and  needs  of  the  moment 
and  obedience  to  the  rather  theoretical  rule  proposed.  We 
know  that  our  commanders  are  ready  to  sacrifice  their  lives 
for  their  country  and  that  they  risk,  when  it  is  necessary, 
that  which  is  even  dearer  than  life,  —  their  honor  and  good 
reputation  ;  we  can  not,  then,  paralyze,  by  rules  inapplicable 
in  practice,  their  means  of  action.  .  .  .  We  may  have 
confidence  that  these  officers  will  themselves  be  able  to 
judge  how  far  their  warlike  energy  should  go  and  where 
pity  and  justice  should  draw  the  line.  ....  We  regard 
war  as  one  of  the  greatest  calamities  which  can  burst  upon 
a  country,  and  we  are  cooperating  with  enthusiasm  in  the 
great  humanitarian  task  to  which  this  conference  is  sum- 
moned. But  at  the  same  time  we  should  not  conceal  from 
ourselves  the  fact  that,  war  having  once  become  inevitable, 
the  inexorable  necessities  of  the  moment  impose  themselves 
in  such  fashion  that  they  often  defy  rules  whose  imprac- 
ticability can  be  foreseen  at  the  present  moment."     Baron 


WARFARE   ON  LAND  259 

Gieslingen,  replying  to  General  Poortugael's  last  argument, 
said  : 

"When  one  yields  to  superior  force,  hie  cannot  be  accused  of  failing 
in  a  patriotic  duty,  and  his  guilt  is  not  established  by  any  code  if  his 
offense  has  been  committed  under  the  domination  of  an  irresistible 
compulsion.  .  .  .  The  existence  and  the  fate  of  a  body  of  troops, 
composed  of  several  thousand  men,  seems  to  us  to  merit  at  least  as 
much  consideration  as  the  conscience  of  a  peasant  under  interroga- 
tion, — ■  a  conscience  which  will  be  easily  tranquilized  by  the  com- 
pulsion under  which  its  possessor  acts." 

The  arguments  of  the  opposition,  although  urged  with 
much  ardor,  did  not  convince  either  committee  or  sub- 
commission,  and  the  rule  proposed  by  the  Netherlands 
delegation  was  reported  to  the  commission,  which  adopted 
it  by  a  vote  of  twenty-three  to  nine,  with  one  abstention.1 
In  the  plenary  session  of  the  conference,  the  rule  was 
adopted  by  a  vote  of  all  the  delegations  except  seven. 
The  delegations  of  Austria,  Montenegro,  Russia,  Rou- 
mania,  and  Bulgaria  reserved  their  votes  upon  it  because 
they  had  accepted  Article  23  only  on  condition  of  Article 
44  being  entirely  suppressed ;  the  German  delegation 
reserved  its  vote  on  it  because  it  was  too  specific,  and 
by  forbidding  some  details  of  warfare  it  might  be  con- 
sidered to  permit  other  pernicious  ones;  the  Japanese 
delegation  reserved  its  vote  until  it  should  see  what 
powers  accepted  it  and  how  large  a  majority  it  secured. 

General  Poortugael  also  proposed  an  amendment  for- 
bidding the  execution  of  an  inhabitant  of  an  occupied 
territory  without  a  sentence  passed  by  a  council  of  war 

1  Germany,  the  United  States,  Austria-Hungary,  Bulgaria,  Great  Britain, 
Montenegro,  Portugal,  Roumania,  and  Russia  voted  against  it;  Japan 
abstained. 


260  THE   TWO   HAGUE   CONFERENCES 

and  sanctioned  by  the  commander  in  chief  of  the  army. 
He  advocated  this  amendment  on  the  ground  that  it 
would  prevent  executions  on  the  spot  in  the  excitement  of 
the  moment,  and  would  also  afford  some  little  guarantee 
against  judicial  errors.  But  when  M.  Beernaert,  of  Bel- 
gium, and  General  Amourel,  of  France,  declared  that  the 
laws  of  1899  already  protected  the  lives  of  the  inhabitants 
of  occupied  territory  and  forbade  summary  executions  even 
for  spies,  General  Poortugael  withdrew  his  amendment, 
on  the  condition  that  the  above  declaration,  as  the  cause  of 
its  withdrawal,  be  entered  upon  the  records. 

The  Austrian  delegation  proposed  that  the  respect 
accorded  to  private  property  (Article  46)  be  accorded  in 
principle.  It  stated  that  it  did  not  wish  to  detract  from 
the  rights  of  private  property,  but  simply  wanted  to  make 
Article  46  more  consistent  with  the  following  articles, 
especially  with  Article  53,  which  deals  with  quasi-public 
property.  But  the  commission  expressed  its  opinion  that 
the  proposed  amendment  would  detract  from  the  rights  of 
private  property;  and  the  delegation  withdrew  it. 
.  The  Conference  of  1907  tried  not  only  to  preserve  but 
to  strengthen  the  rights  of  private  property  by  adopting  an 
amendment  proposed  by  the  Russian  delegation  to  Article 
52,  which  provides  that  the  receipts  given  for  contributions 
in  kind  shall  be  redeemed  in  money  as  soon  as  possible. 
Russia's  representative  urged  that  such  a  measure  would 
be  in  the  interests  both  of  the  population,  who  might 
suffer  great  distress  if  payment  for  their  produce  were  long 
delayed,  and  of  the  occupying  army  itself,  "which  can 
never  be  profited  by  the  exhaustion  of  the  country  it 
occupies."  He  proposed  that  the  receipts  should  be 
redeemed  even  during  hostilities,  without  waiting  for  the 


WARFARE   ON   LAND  26 1 

return  of  peace;    but  this  last  addition  was  not  deemed 
necessary  to  the  words  "as  soon  as  possible." 

An  Austrian  and  Russian  amendment  to  Article  53 
proposed  to  substitute  for  the  list  of  public  or  quasi-public 
property  (liable  to  seizure  by  an  occupying  army  for  its 
military  operations,  on  condition  of  restitution  and  in- 
demnity) a  general  statement  including  all  means  of  com- 
munication and  transportation.  This  suggestion  was 
adopted,  and  the  rule  now  includes  "all  means,  on  land 
and  sea,  and  in  the  air,  of  transmitting  news  and  transport- 
ing persons  or  things,  except  those  regulated  by  maritime 
law."  The  sweeping  form  of  this  statement  was  objected 
to  on  the  ground  that  since  it  protects  the  enemy's  passen- 
ger boats  used  for  navigating  rivers  from  capture  in  ports,  it 
interferes  with  the  right  of  maritime  capture ;  but  it  was 
held  that  the  right  of  maritime  capture  would  not  apply 
to  such  a  case,  and  hence  there  would  be  no  interference. 
It  would  naturally  be  supposed  that  the  broad  statement 
adopted  would  include  the  landing  connections  of  sub- 
marine cables,  which  the  Danish  delegation  of  1899  had 
tried  so  ably  to  have  protected.  But,  apparently  to  make 
assurance  doubly  sure,  the  Danish  delegation  proposed 
the  rule  that  submarine  cables  connecting  an  occupied 
territory  with  a  neutral  territory  shall  be  seized  or  de- 
stroyed only  in  case  of  absolute  necessity;  and  they  shall 
be  restored  and  an  indemnity  agreement  made  for  them 
on  the  restoration  of  peace.  When  this  rule  was  proposed, 
the  British  delegation  asked  for  an  adjournment  of  its 
discussion,  so  that  it  might  have  the  opportunity  of  exam- 
ining it.  At  a  later  session,  Lord  Reay  announced  that 
the  British  delegation  was  entirely  satisfied  with  the  pro- 
posed rule.     It  was  then  adopted  unanimously,  and  one  of 


262      THE  TWO  HAGUE  CONFERENCES 

Denmark's  objects  was  attained,  but  on  its  adoption,  the 
statement  was  made  and  indorsed  that  it  had  to  do  only 
with  land  connections,  and  did  not  at  all  affect  the  seizure 
or  destruction  of  submarine  cables  in  the  open  sea. 

This  last  article  was  numbered  54,  and  was  put  in  the 
place  of  Article  54  in  the  1899  code,  which  had  to  do  with 
the  property  of  railways  entering  an  occupied  territory  from 
neutral  states.  The  latter  article,  together  with  Articles 
57  to  60,  inclusive,  were  transferred  to  the  convention 
of  1907  in  regard  to  the  rights  and  duties  of  neutrals. 
Thus  the  code  of  laws  regulating  warfare  on  the  land, 
which  comprised  sixty  articles  in  1899,  was  reduced  to 
fifty-six  in  1907. 

6.    The  Opening  of  Hostilities 
The  Conference  of  igoy 

This  topic  did  not  form  a  part  of  the  programme  of  the 
first  conference;  but,  because  of  events  which  transpired 
in  the  course  of  the  next  few  years,  the  Russian  govern- 
ment placed  it  upon  the  programme  for  the  second  con- 
ference. 

It  was  presented  to  the  consideration  of  the  second  sub- 
commission  of  the  II  Commission  in  the  form  of  the  fol- 
lowing questions:  Should  the  opening  of  hostilities  be 
preceded  by  a  declaration  of  war  or  an  equivalent  act? 
Should  a  fixed  time  elapse  between  the  declaration  and  the 
opening  of  hostilities?  Should  the  declaration  be  an- 
nounced to  the  powers,  and  by  whom? 

In  response  to  the  above  questions,  the  French  dele- 
gation proposed  an  agreement  between  the  contracting 


WARFARE    ON   LAND 


263 


powers  that  "hostilities  should  not  commence  between 
them  without  a  previous  and  unequivocal  warning  which 
shall  have  the  form  either  of  a  declaration  stating  the 
causes  of  the  war,  or  that  of  an  ultimatum  with  a  con- 
ditional declaration  of  war." 

General  Yermolow  and  Colonel  Michelson,  of  Russia, 
General  Poortugael,  of  the  Netherlands,  General  Amourel, 
of  France,  and  Baron  von  Bieberstein,  of  Germany,  sup- 
ported this  proposition  and  urged  in  its  favor  the  following 
considerations:  an  international  agreement  on  the  sub- 
ject is  desirable  because  positive  international  law  does  not 
yet  require  such  previous  warning;  a  previous  warning  is 
desirable  to  relieve  governments  of  the  necessity  of  remain- 
ing fully  armed  and  on  the  qui  vive  against  sudden  attack 
in  time  of  peace;  to  enable  them  to  reduce  their  effective 
armaments  in  time  of  peace,  and  thus  to  reduce  the  finan- 
cial burden  of  armies  and  fleets;  to  prevent  an  unex- 
pected attack  upon  commerce;  to  give  expression  to  the 
modern  belief  that  every  war,  before  it  is  commenced, 
should  be  justified  or  explained  to  the  family  or  society  of 
nations  by  the  statement  of  definite  causes ;  and  to  afford 
an  opportunity  to  neutral  governments  of  offering  their 
good  offices  to  end  the  dispute,  or  of  persuading  the  dis- 
putants to  submit  their  difference  to  the  Permanent  Court 
of  Arbitration  at  The  Hague. 

These  arguments  were  accepted  as  conclusive  by  the  sub- 
commission,  which  adopted  the  French  proposition  by  an 
affirmative  vote  of  all  the  delegations  save  two,  with  two 
abstentions.1     The  commission  and    conference   adopted 

1  The  Brazilian  and  Dominican  delegations  voted  no,  for  the  reason,  ap- 
parently, that  the  proposition  did  not  fax  a  definite  time  between  the  warning 
and  the  blow.     Cuba  abstained  because  the  proposition  was  regarded  as 


264  THE   TWO    HAGUE   CONFERENCES 

it  by  unanimous  vote,  and  it  was  embodied  in  a  separate 
treaty  (Convention  III). 

It  will  be  observed  that  the  French  proposition  did  not 
include  a  statement  as  to  the  delay  which  must  follow  "a 
previous  warning"  before  hostilities  are  commenced.  The 
Netherlands  delegation  moved  to  fix  this  delay  at  "not  less 
than  twenty-four  hours";  and  General  Poortugael,  in 
offering  this  amendment  to  the  French  proposition,  argued 
that  unless  some  such  definition  of  "a  previous  warning" 
be  adopted,  the  latter  might  be  reduced  to  a  half  hour  or 
less  and  become  a  mere  form ;  he  also  showed  by  historic 
examples  that  even  the  denunciation  of  armistices  is  fol- 
lowed by  a  fixed  delay  before  hostilities  are  resumed. 
Colonel  Michelson,  of  Russia,  supported  the  Netherlands 
amendment  and  urged  that  the  proposed  delay,  short  and 
insufficient  though  it  was,  should  be  adopted,  with  the 
hope  that  a  longer  delay  may  be  secured  in  the  future. 
But  the  French,  German,  and  Japanese  delegations  op- 
posed this  amendment,  without  stating  the  reasons  for 
their  opposition,  and  when  it  was  put  to  a  vote  the  sub- 
commission  rejected  it  by  sixteen  noes,  thirteen  ayes,  and 
five  abstentions.1 

The  French  proposition  included  the  rule  that  "the 
state  of  war  should  be  notified  without  delay  to  the  neutral 
powers."  This  rule  was  advocated  by  the  Netherlands, 
French,  and  Italian  representatives  for  the  reasons  that 


opposed  to  the  constitutional  right  of  the  Cuban  congress  to  declare  war; 
and  China  abstained  apparently  because  the  proposition  implied  the  necessity 
of  the  declaration  of  war  being  accepted  by  the  power  to  whom  it  is  sent,  and 
because  it  did  not  define  "  war  "  which,  as  the  history  of  China  amply  shows, 
has  often  been  made  under  the  guise  of  "  expeditions." 

1  Six  of  the  eight  great  powers,  including  the  United  States,  voted  against 
this  amendment,  Russia  voted  for  it,  and  Austria-Hungary  abstained. 


WARFARE   ON   LAND  265 

war  between  two  states  often  involves  others  because  of 
treaties  of  alliance ;  that  neutral  merchants  and  navigators 
at  a  distance  from  their  homes  should  be  duly  notified; 
that  war  often  causes  great  annoyance  to  neutral  coun- 
tries which,  having  duties  to  perform  in  their  relations 
with  belligerents,  have  the  right  to  be  promptly  informed 
when  their  duties  begin. 

The  Belgian  delegation  proposed  that  the  notification  of 
the  war  to  neutrals  might  be  made  by  telegraph  or  cable, 
but  that  it  should  not  take  effect  as  far  as  they  were  con- 
cerned until  forty-eight  hours  after  its  reception.  The 
French  and  German  delegations  opposed  this  amendment 
for  the  reason  that  the  delay  might  be  utilized  by  neutrals 
for  the  commission  of  acts  contrary  to  the  rules  of  neutrality, 
—  for  the  sale  of  war  ships  to  the  belligerents,  for  example. 

The  right  of  neutrals  to  receive  prompt  notification  of 
the  war  was  unanimously  admitted  by  the  subcommission; 
but  the  question  of  when  this  notification  should  go  into 
effect  was  referred  to  a  special  committee1  with  power  to 
report  directly  to  the  commission.  The  committee's  re- 
port was  reached  after  but  little  discussion  and  was 
adopted  unanimously  by  both  commission  and  conference. 
The  rule  as  reported  provides  that  "the  state  of  war  must 
be  notified  without  delay  to  the  neutral  powers,  and  will 
go  into  effect  as  regards  them  only  after  the  reception  of 
a  notification  which  may  be  made  by  telegraphic  means; 
but  the  neutral  powers  can  not  invoke  the  lack  of  notifi- 
cation if  it  be  proved  conclusively  that  they  knew  in  fact 
of  the  state  of  war." 


1  This  committee  was  composed  of  eighteen  members,  representing  four- 
teen countries.  The  United  States  representative  on  it  was  General  G.  B. 
Davis. 


266  THE  TWO   HAGUE   CONFERENCES 

When  the  rule  in  regard  to  a  previous  declaration  of  war 
was  first  proposed,  the  United  States  delegation  reserved 
its  opinion  upon  it  pending  instructions  from  the  home 
government.  At  the  next  meeting  of  the  subcommission, 
one  week  later,  General  Porter  stated  that  the  United 
States  Constitution  gives  to  the  Congress  the  exclusive 
power  of  declaring  war;  but  that  "it  is  with  great  satis- 
faction that  this  delegation  declares  that  the  proposition 
presented  by  the  French  delegation  is  not  in  contradiction 
with  the  law  cited  above  and,  for  this  reason,  the  delega- 
tion of  the  United  States  of  America  takes  pleasure  in 
adhering  to  it.  It  is  proper  to  add,  however,  that  although 
this  is  true  as  regards  offensive  military  operations,  the  in- 
variable policy  of  the  government  of  the  United  States 
of  America  has  been  to  invest  in  the  President,  as  com- 
mander in  chief  of  the  constitutional  forces  on  land  and 
sea,  the  full  power  of  defending  the  territories  and  the 
property  of  the  United  States  of  America  in  case  of  in- 
vasion, and  of  exercising  the  right  of  national  defense  at 
all  times  and  in  all  places." 

The  convention  was,  accordingly,  voted  for  and  signed 
by  the  United  States  delegation  and  ratified  by  the  Senate. 
The  Cuban  delegation,  because  of  the  same  constitutional 
consideration  as  that  expressed  by  the  United  States  dele- 
gation, voted  against  the  rule  in  the  subcommission,  but 
afterwards  voted  for  it  in  the  commission  and  conference, 
and  signed  the  convention  containing  it. 


XIII.   ARBITRATION 

A.     GOOD   OFFICES   AND   MEDIATION 

a.  The  Conference  of  1899 

The  last  topic  on  the  Russian  programme  was  stated  to 
be  "the  acceptance,  in  principle,  of  the  use  of  good  offices, 
mediation,  and  voluntary  arbitration,  in  cases  adapted 
to  such  means,  with  the  object  of  preventing  armed  con- 
flicts between  nations;  an  agreement  as  to  the  mode  of 
applying  these  means;  and  the  adoption  of  a  uniform 
practice  of  them."  It  was  assigned  to  the  III  (and  last) 
Commission ;  and,  like  many  last  things,  it  speedily 
became  first  in  the  minds  of  both  conference  and  public. 

The  discussion  of  good  offices  and  mediation  was  based 
on  a  series  of  articles  proposed  by  the  Russian  delegation. 
Chevalier  Descamps,  of  Belgium,  who,  in  his  capacity  of 
rapporteur  of  the  commission,  presented  a  very  able  report 
on  the  whole  subject  of  arbitration,  stated  the  distinction 
between  "good  offices"  and  "mediation"  to  be  that  the 
former  are  considered  more  friendly  and  less  definite  than 
the  latter,  and  are  often  followed  by  a  "mediation"  in 
which  the  third  power,  having  extended  its  good  offices,  is 
called  upon  to  act  as  mediator  between  the  combatants. 
Both  were  justified  on  the  ground  that  all  civilized  nations 
are  members  of  one  great  international  society,  and  that  a 
war  between  any  two  members  of  this  society  may  cause 
irretrievable  injury  to  one  or  all  of  the  others. 

267 


268  THE   TWO   HAGUE   CONFERENCES 

Before  this  argument,  —  and  with  the  thought,  doubt- 
less, of  others  not  expressed,  —  there  was  no  opposition 
to  the  adoption  of  the  agreement  that  in  case  of  serious 
dispute  or  conflict,  before  an  appeal  is  made  to  arms,  the 
powers  would  have  recourse,  as  far  as  circumstances  per- 
mit, to  the  good  offices  or  mediation  of  one  or  more  friendly 
powers. 

It  will  be  noted  that  this  agreement  is  qualified  by  the 
two  clauses  "in  case  of  serious  dispute  or  conflict"  and 
"as  far  as  circumstances  permit."  M.  Asser,  of  the  Nether- 
lands, moved  to  strike  out  the  latter  clause,  on  the  ground 
that  although  it  was  adopted  in  1856  by  the  Treaty  of 
Paris,  it  had  been  discarded  in  1885  by  the  Act  of  Berlin; 
hence,  to  retain  it  in  1899  would  be  a  step  backward. 
Count  Nigra,  of  Italy,  supported  this  motion,  on  the  ground 
that  the  clause  in  question  would  destroy,  to  a  large  extent, 
the  utility  of  the  agreement.  The  motion  was  adopted, 
in  committee,  and  the  qualifying  clause  was  omitted. 
The  commission  restored  it  again,  on  the  motion  of  Sir 
Julian  Pauncefote,  of  Great  Britain,  who  had  voted  at 
first  for  its  omission,  but  who  now  moved  to  restore  it  for 
the  reason  that,  the  rule  being  a  new  one,  its  application 
would  be  facilitated  by  the  qualifying  clause.  M.  Bour- 
geois, of  France,  also  advocated  the  retention  of  the  clause, 
for  the  reason  that  the  new  rule  was  to  be  of  very  wide, 
almost  universal,  application,  whereas  the  Act  of  Berlin  of 
1885  had  applied  only  to  disputes  localized  in  Africa;  and 
that  to  attempt  more,  at  first,  than  the  powers  could  carry 
out  would  be  a  source  of  weakness  both  to  the  agreement 
and  to  the  powers  who  made  it. 

No  attempt  was  made,  naturally,  to  define  the  circum- 
stances which  would,  or  would  not,  "permit."     Nor  was 


ARBITRATION  269 

it  stated  what  is  meant  by  a  "serious  dispute  or  conflict"; 
but  the  rapporteur  interpreted  this,  without  contradiction, 
to  mean  any  grave  dispute  which  puts  in  danger  the  main- 
tenance of  peaceful  relations ;  in  other  than  such  disputes, 
he  said,  good  offices  or  mediation  might  constitute  unjusti- 
fiable and  dangerous  meddling. 

The  agreement  noted  above  was  that  the  powers  would 
have  recourse  to  the  good  offices  or  mediation  of  one  or 
more  friendly  powers;  and  this  was  intended  to  mean 
that  the  parties  to  the  dispute  would  themselves  request 
the  services  of  another.  But  the  further  statement  was 
made  that  "independently  of  this  recourse,  the  signatory 
powers  consider  it  useful  that  one  or  more  powers,  stran- 
gers to  the  dispute,  should,  on  their  own  initiative,  and  as 
far  as  circumstances  permit,  offer  their  good  offices  or 
their  mediation  to  the  states  at  variance  with  each  other." 
This  right  to  offer  good  offices  or  mediation  was  based 
upon  the  independence  and,  in  the  eyes  of  international 
law,  the  equality  of  states;  it  was  also  admitted  to  be,  in 
many  cases,  identical  with  the  duty  of  a  state  to  defend  its 
rights  and  interests  as  a  member  of  the  "peaceful  society 
of  nations."  On  the  motion  of  Count  Nigra,  this  right 
was  stated  to  belong  to  "powers  strangers  to  the  conflict, 
even  during  the  course  of  hostilities." 

The  conference  ignored  the  distinction  sometimes  made 
between  good  offices  and  mediation,  from  the  point  of 
view  of  friendly  feelings,  and  regarded  them  both  as  being 
offered  in  a  wholly  conciliatory  spirit.  In  order  to  make 
this  entirely  plain,  and  to  give  additional  encouragement 
to  the  extension  of  good  offices  or  mediation,  the  agree- 
ment further  provides  that  "the  exercise  of  this  right  shall 
never  be  considered  by  either  of  the  parties  to  the  dispute 


270  THE  TWO   HAGUE   CONFERENCES 

as  an  unfriendly  act."  The  word  "never"  was  not  com- 
mented upon  ;  but  the  place  of  this  proviso  makes  it  apply, 
not  only  to  such  offers  made  before  the  war  begins,  but 
also  to  those  made  "even  during  the  course  of  hostilities," 
when  one  of  the  combatants  may  be  supposed  to  be  gain- 
ing an  advantage. 

Professor  Veljkovitch,  of  Servia,  proposed  to  add  to  this 
last  rule  the  statement  that  the  refusal  of  an  offer  of  good 
offices  or  mediation  shall  never  be  considered  an  unfriendly 
act.  But  this  proposition  was  opposed  for  the  reason  that 
it  was  not  desirable  to  insert  what  might  seem  like  an  in- 
vitation to  refuse  mediation  in  a  convention  whose  object 
it  is  to  encourage  all  possible  means  of  preserving  the  peace. 
It  was  stated  in  the  discussion,  however,  that  such  a  refusal 
can  not  be  considered  an  unfriendly  act,  inasmuch  as  the 
right  to  offer  mediation  implies  a  corresponding  right  to 
refuse  it.  On  condition  that  this  statement  should  be  em- 
bodied in  the  minutes,  Professor  Veljkovich  withdrew  his 
proposition. 

But,  in  order  to  prevent  any  unfair  advantage  being 
taken  of,  or  derived  from,  the  offer  of  mediation,  the  con- 
ference adopted  the  rule  that  the  acceptance  of  mediation 
can  not  result,  unless  there  be  an  agreement  to  the  con- 
trary, in  interrupting,  delaying,  or  hindering  mobilization 
or  other  measures  preparatory  to  war;  and  if  its  accept- 
ance occurs  after  the  commencement  of  war,  it  shall  not, 
unless  there  be  an  agreement  to  the  contrary,  cause  any 
interruption  in  the  hostilities  commenced.  This  rule 
was  not  proposed  by  the  Russian  delegation,  but  was 
adopted  on  motion  of  Count  Nigra,  who  said  that  it  might 
be  regarded  as  superfluous,  since  mediation  almost  al- 
ways occurs  after  a  special  agreement  has  been  made  in- 


ARBITRATION  271 

eluding  all  such  details ;  or  that  the  rule  might  even  be 
inverted,  and  provide  that  "hostilities  shall  be  delayed  or 
suspended  as  a  result  of  mediation,  unless  there  be  an 
agreement  to  the  contrary."  But,  he  continued,  since 
there  are  some  large  powers  —  ready  for  instant  warfare  — 
which  would  not  adopt  the  principle  of  mediation  without 
the  proviso  contained  in  the  rule,  the  proviso  should  be 
included  in  the  interests  of  the  utmost  possible  extension 
of  mediation. 

The  role  of  the  mediator  is  confined  to  the  reconcilia- 
tion of  opposing  claims  and  the  appeasement  of  resent- 
ments which  may  have  arisen  between  the  states  in  dispute. 
The  statement  of  this  role  would  seem  to  be  sufficiently 
broad  to  include  a  very  large  variety  of  acts  on  the  part 
of  the  mediator ;  but,  to  prevent  the  act  of  mediation  from 
being  continued  indefinitely,  it  was  ruled  that  the  func- 
tions of  a  mediator  shall  cease  from  the  moment  when  it 
is  declared,  either  by  one  of  the  parties  to  the  dispute,  or 
by  the  mediating  power  itself,  that  the  means  of  reconcilia- 
tion proposed  are  not  accepted. 

The  dread  of  "intervention"  on  the  part  of  the  large 
powers  or  the  "concert  of  Europe"  made  itself  evident, 
at  numerous  times  during  the  deliberations  of  the  con- 
ference, in  the  words  of  the  representatives  of  the  smaller 
powers.  To  remove  this  fear,  so  far  as  good  offices  and 
mediation  were  concerned,  it  was  provided  that  these, 
whether  at  the  request  of  the  parties  to  the  dispute  or 
upon  the  initiative  of  powers  which  are  strangers  to  ths 
dispute,  have  exclusively  the  character  of  advice,  and  never 
have  binding  force.  When  this  rule  was  adopted,  it  was 
stated  expressly  that  good  offices  and  mediation  partake 
not  at  all  of  the  character  of  arbitration,  of  authoritative 


272 


THE   TWO    HAGUE   CONFERENCES 


intervention,  of  so-called  "armed  mediation,"  or  of  a 
hegemony  imposing  its  will,  individually  or  collectively, 
upon  reluctant  recipients.  And  to  make  assurance  doubly 
sure  on  this  point,  the  delegation  from  Servia  made  a 
formal  statement  to  the  above  effect  when  it  voted  for  the 
adoption  of  the  rules  proposed. 

A  most  interesting  and  promising  development  of  the 
principle  of  mediation  was  pointed  out  in  the  committee 
by  Mr.  Holls,  of  the  United  States,  and  on  his  motion  was 
adopted  by  the  conference  as  Article  8  of  the  convention. 
This  article  is  as  follows: 

"The  Signatory  Powers  are  agreed  in  recommending  the  applica- 
tion, when  circumstances  permit,  of  special  mediation  in  the  following 
manner: 

"In  case  of  a  serious  difference  endangering  the  peace,  the  states 
at  variance  shall  each  choose  a  power,  to  whom  they  shall  intrust  the 
mission  of  entering  into  direct  communication  with  the  power  chosen 
on  the  other  side,  with  the  object  of  preventing  the  rupture  of  peaceful 
relations. 

"During  the  period  of  this  mandate,  the  term  of  which,  unless 
otherwise  stipulated,  can  not  exceed  thirty  days,  the  states  in  dispute 
shall  discontinue  all  direct  communication  on  the  subject  of  the  dis- 
pute, which  shall  be  regarded  as  having  been  referred  exclusively  to 
the  mediating  powers,  who  shall  use  their  best  endeavors  to  settle  the 
controversy. 

"In  case  of  a  definite  rupture  of  pacific  relations,  these  powers 
shall  remain  charged  with  the  joint  duty  of  profiting  by  every  oppor- 
tunity to  restore  peace." 

Mr.  Holls  made  this  important  proposition  in  the  Hague 
Conference  entirely  on  his  own  responsibility;  but  it  was 
not  a  new  one,  nor  did  it  originate  with  himself,  and  in  his 
book  on  the  first  Peace  Conference  at  The  Hague  (pages 
188-196)  he  has  given  an  interesting  account  of  the  develop- 
ment of  the  idea,  both  in  the  field  of  international  warfare 


ARBITRATION 


273 


and  in  that  of  private  duelling.  He  advocated  his  propo- 
sition before  the  committee  by  arguing  that,  "although  in 
a  case  where  neither  arbitration  nor  mediation  seem  to 
be  possible  remedies,  the  chances  of  avoiding  a  conflict 
[by  another  means]  may  be  characterized  as  minimal,  it 
is  none  the  less  true  that  in  the  interests  of  peace  and  in 
the  light  of  experience  the  attempt  should  be  made,  es- 
pecially if  the  means  proposed  are  of  a  nature  to  be  useful 
even  in  case  peace  should  after  all  be  broken.  ...  It  is 
an  obvious  truth  which  has  found  expression  in  private 
life  by  the  institution  of  seconds  or  witnesses,  in  affairs  of 
honor  between  gentlemen,  that  on  the  eve  of  what  may 
be  a  fatal  encounter  it  is  best  to  leave  the  discussion  of  the 
points  in  controversy  to  third  parties  rather  than  to  the 
principals  themselves.  The  second  enjoys  the  entire  con- 
fidence of  his  friend,  whose  interests  he  agrees  to  do  his 
best  in  defending,  until  the  entire  affair  may  be  settled ; 
yet  nevertheless,  not  being  directly  interested  in  the  con- 
troversy, he  preserves  at  all  times  the  liberty  of  a  mutual 
friend,  or  even  of  an  arbitrator,  but  without  the  slightest 
responsibility. 

"In  the  second  place,  I  would  respectfully  submit  that 
every  institution  or  custom  which  may  receive  the  approval 
of  the  Peace  Conference,  having  for  its  object  the  intro- 
duction of  a  new  element  of  deliberation  into  the  relations 
between  states  when  the  latter  have  become  strained, 
certainly  marks  so  much  progress,  and  may  conceivably 
be  of  vital  importance  at  a  critical  moment.  As  a  matter 
of  fact,  and  even  with  the  new  guarantees  for  peace  which 
may  be  offered  by  the  international  court  and  the  most 
solemn  and  formal  declarations  in  favor  of  mediation  and 
good  offices,  the  negotiations  between  two  states  in  con- 


274  THE   TW0   HAGUE   CONFERENCES 

troversy  may  arrive  at  a  point  when  it  becomes  necessary 
for  the  representative  of  the  one  to  say  to  the  representa- 
tive of  the  other,  'One  more  step  means  war.'  If  the 
proposition  which  is  hereby  submitted  to  you  should  be 
adopted,  it  will  be  possible  to  substitute  for  this  formula 
another:  'One  step  farther  and  we  shall  be  obliged  to 
appoint  a  second.'  These  words,  it  is  true,  will  have  a 
grave  significance,  and  yet  it  would  seem  that  they  will  have, 
besides  other  advantages,  that  of  producing  all  the  good 
effects  of  a  threat  of  war  without  having  the  aggressive 
character  of  a  menace,  pure  and  simple,  or  of  an  ultima- 
tum. The  amour  propre  of  the  two  parties  will  remain 
inviolate,  and  yet  all  will  have  been  said  which  must  be 
said.  .  .  . 

"Finally,  and  I  hope  this  point  is  by  no  means  the  least 
important,  it  is  recommended  on  account  of  its  utility 
as  an  agency  for  peace  even  in  time  of  war.  It  is  not 
necessary  to  enlarge  upon  this  idea.  It  is  admitted  that 
there  are  many  circumstances  where  the  intervention  of 
mediatory  powers  with  recognized  authority  would  suffice 
to  convince  one  of  the  belligerent  states,  if  not  both,  that 
satisfaction  has  been  obtained,  and  thus  to  save  many  lives 
and  much  suffering." 

This  proposition  was  received  very  favorably  by  the 
committee,  and  recommended  to  the  commission  for 
adoption,  with  the  additional  argument  —  made  by  Chev- 
alier Descamps — -that  this  form  of  "concerted  media- 
tion" has  the  great  advantage  of  doing  away  with  the 
necessity  of  an  agreement,  often  very  difficult  to  secure, 
as  to  the  choice  of  one  common  mediator.  It  was  also 
explained  that  the  mediating  seconds  are  left  free  to  enter 
into  negotiations  on  the  subject  of  the  controversy  with 


ARBITRATION  275 

other  powers,  a  course  which  may  often  result  in  simple 
mediation  and  even  in  arbitration.  The  commission 
and  conference  adopted  the  proposition  unanimously; 
but  Professor  de  Martens,  of  Russia,  pointed  out  the  fact 
that,  while  the  first  seven  articles  on  good  offices  and 
mediation  had  been  agreed  upon,  this  article  on  special 
mediation  had  been  recommended.  On  the  demand  of 
M.  Vasconcellos,  of  Portugal,  it  was  also  expressly  ad- 
mitted that  the  rule  in  regard  to  the  cessation  of  hostilities 
or  preparation  for  them,  as  a  result  of  mediation,  should 
be  applicable  also  to  special  mediation. 

b.   The  Conference  of  1907 

The  Russian  programme  for  the  Conference  of  1907 
mentioned  first  on  its  list,  "Improvements  in  the  rules 
of  the  Convention  of  1899  regulating  the  Settlement  of 
International  Disputes";  but  it  specified  among  these 
only  the  Court  of  Arbitration  and  the  International  Com- 
missions of  Inquiry.  At  an  early  meeting  of  the  subcom- 
mission  on  arbitration,  however,  Ambassador  Choate, 
of  the  United  States,  offered  an  amendment  to  the  state- 
ment made  in  1899  that  the  signatory  powers  consider 
it  useful  that  one  or  more  powers,  strangers  to  the  dispute, 
should,  on  their  own  initiative,  and  as  far  as  circumstances 
will  allow,  offer  their  good  offices  or  mediation  to  the  states 
at  variance  with  each  other.  The  amendment  was  an 
attempt  to  increase  the  frequency  of  such  offers,  and  pro- 
vided that  after  the  word  useful  in  the  above  article  should 
be  added  the  words  and  desirable.  This  amendment  was 
adopted  without  discussion,  and  was  the  only  amendment 
proposed  to  the  first  seven  articles  of  1899  which  dealt 
with  good  offices  and  ordinary  mediation. 


276  THE   TWO    HAGUE   CONFERENCES 

The  delegation  from  Haiti  proposed  to  amend  the  article 
on  special  mediation  by  the  requirement  that  the  two 
seconding  powers,  selected  respectively  by  the  two  com- 
batants, should  not  act  directly,  but  should  choose  "a 
mediator,  charged  with  the  duty  of  preventing  the  rupture 
of  peaceful  relations."  It  supported  this  amendment 
by  the  argument  that  special  mediation  would  have  more 
chance  of  success  if,  instead  of  being  confided  to  two 
powers,  it  should  be  referred  to  a  single  state  chosen  under 
conditions  which  would  insure  complete  impartiality ; 
that  if  the  seconding  powers  are  themselves  charged  with 
the  mediation,  they  would  have,  unconsciously  perhaps, 
a  certain  tendency  to  consider  themselves  bound  above 
all  to  present  under  the  best  possible  aspect  the  cause  of 
the  states  which  chose  them ;  and  that  not  having  a  third 
power  to  decide  between  them,  they  would  have  but 
little  chance  of  arriving  at  an  agreement,  while  their  dis- 
agreement would  incur  the  grave  risk  of  giving  to  the 
parties  in  dispute  the  impression  that  they  were  not  at  all 
in  the  wrong ;  a  third  power,  on  the  other  hand,  not  holding 
its  appointment  directly  from  the  parties  interested,  would 
succeed  more  easily  in  making  them  listen  to  reason,  — 
or,  at  least,  its  decision  would  seem  less  partial. 

This  amendment  was  referred  to  a  subcommittee,  w  ich 
rejected  it  on  the  twofold  argument,  advanced  by  M. 
Asser,  of  the  Netherlands,  and  Professor  de  Martens, 
of  Russia :  that  the  rule  proposed  in  1899  by  Mr.  Holls 
had,  most  unfortunately,  not  yet  been  put  into  practice, 
and  hence  its  utility  could  not  yet  be  passed  upon ;  and 
that  in  case  of  acute  conflict,  two  seconding  states  friendly 
to  the  disputants  might  possibly  render  to  them  signal 
services,  but  that  little  or  nothing  could  be  expected  of  a 


ARBITRATION  277 

third  power  not  chosen  by  the  disputants  themselves, 
since,  in  the  midst  of  a  conflict,  its  voice  would  not  be 
listened  to.  This  view  of  the  question  was  supported  by 
the  representatives  of  Germany,  Italy,  Austria,  Great 
Britain,  and  the  United  States,  and  the  committee  decided 
to  retain  Article  8  intact. 


B.    INTERNATIONAL  COMMISSIONS   OF   INQUIRY 

a.   The  Conference  of  1899 

The  introduction  of  International  Commissions  of 
Inquiry  among  the  means  of  preserving  the  peace  led  to 
one  of  the  longest  and  warmest  debates  of  the  conference. 
They  were  proposed  by  the  Russian  delegation,  and  were 
urged  by  Professor  de  Martens,  of  that  delegation,  who 
said  that  they  were  not  an  innovation  in  the  law  of  nations ; 
that  they  had  already  proven  their  efficacy,  especially  in  dis- 
putes arising  on  or  near  international  boundaries;  that 
their  utility  is  twofold :  first,  they  seek  out  and  make 
known  the  truth  about  a  dispute  arising  suddenly  and  from 
obscure  or  unknown  causes;  and,  second,  they  afford  time 
for  the  subsidence  of  passions  and  for  the  transition  of  the 
acute  stage  of  the  dispute. 

The  Russian  proposal  was  that  the  conference  should 
bind  the  signatory  powers  to  establish  such  a  commission 
for  the  purpose  of  ascertaining  and  declaring  the  circum- 
stances which  give  rise  to  a  dissension,  and  of  clearing  up 
all  the  questions  of  fact  by  an  impartial  and  thorough 
examination  on  the  spot.  The  committee,  in  the  absence  of 
Professor  dc  Martens,  and  on  the  advice  of  Professor  Lam- 
masch,  of  Austria,  and  Mr.  Holls,  of  the  United  Stales, 


278  THE   TWO   HAGUE   CONFERENCES 

decided  that  for  the  conference  to  agree  to  the  establish- 
ment of  such  commissions  would  be  going  too  far  in  the 
direction  of  obligatory  arbitration  and  an  infringement 
upon  national  sovereignty;  it  agreed,  therefore,  that  an 
article  should  be  adopted  recommending  to  the  govern- 
ments concerned  in  the  dispute  to  establish  such  com- 
missions. At  the  next  meeting  of  the  committee,  Professor 
de  Martens  was  present,1  and  after  stating  the  advantages 
of  commissions  of  inquiry,  as  mentioned  above,  he  pointed 
out  the  fact  that  their  role  is  solely  to  make  a  report  and 
not  to  render  decisions  in  any  way  binding  upon  the  parties 
in  dispute;  and  that  in  accordance  with  the  Russian 
proposal  they  were  to  act  only  when  the  dispute  could 
not  be  settled  by  diplomatic  means,  and  when  "neither 
the  honor  nor  the  vital  interests  of  the  states  at  variance 
are  involved."  For  the  conference  to  establish  these 
commissions,  then,  he  argued,  would  not  be  obligatory 
arbitration,  nor  an  attack  upon  national  sovereignty; 
whereas,  for  it  to  confine  itself  to  expressing  a  platonic 
desire  — ■  to  recommending  the  appointment  of  these  com- 
missions —  would  result  in  their  entire  neglect. 

A  general  discussion  followed  Professor  de  Martens's 
animated  speech,  in  the  course  of  which  a  compromise 
was  agreed  upon,  namely,  that  the  conference  should 
bind  the  signatory  powers  to  establish  commissions  of 
inquiry,  in  so  far  as  circumstances  will  permit.  A  motion 
was  made  to  omit  the  other  qualifying  clause,  namely, 
"neither  the  honor  nor  the  vital  interests  of  the  states 
at  variance  are  involved."     But  in  view  of  the  facts  that 


1  His  absence  had  been  due  to  the  necessity  of  his  going  to  Paris  to  act 
as  President  of  the  High  Court  of  Arbitration  between  Great  Britain  and 
Venezuela. 


ARBITRATION  279 

some  delegations  had  manifested  much  anxiety  as  to  the 
commissions  and  their  power,  and  that  one  of  them  had 
proposed  to  add  still  another  qualifying  clause,  namely, 
"if  the  powers  find  it  advantageous  to  do  so,"  it  was 
decided  to  retain  the  clause  in  regard  to  "honor  and  vital 
interests,"  as  well  as  that  in  regard  to  "circumstances 
permitting." 

The  anxiety  of  various  delegations  in  regard  to  the  com- 
missions of  inquiry,  which  had  become  evident  to  the 
committee,  had  expressed  itself  in  several  arguments 
against  them.  It  was  said,  on  the  one  hand,  that  they 
were  a  long  step  in  the  direction  of  obligatory  arbitration ; 
on  the  other,  that,  if  the  report  made  by  them  on  a  dispute 
should  prove  unfavorable  to  a  large  power  at  variance 
with  a  small  one,  the  large  power  would  not  consent  to 
arbitration,  and  thus  they  would  be  an  obstacle  to  the 
extension  of  voluntary  arbitration ;  again,  that  they  were 
only  the  prelude  to  a  series  of  acts  which  would  bind  the 
powers  tightly  together,  to  the  disadvantage  of  the  smaller 
ones.  "The  delegates  who  fear  commissions  of  inquiry," 
said  Baron  d'Estournelles,  of  France,  "advance  fears, 
and  not  arguments,  against  them,  and  that  is  why  they 
can  not  be  convinced.  Their  fears  are  both  moral  and 
material.  They  are  afraid,  first,  of  seeing  the  amour 
propre  of  their  country  wounded,  for  these  commissions 
would  reveal  defects  of  administration,  —  a  humiliation 
which  they  dread.  Besides,  they  fear  that  as  a  result  of 
these  revelations  they  will  incur  the  resentment  of  public 
opinion.  There  is,  then,  a  kind  of  natural  coalition  be- 
tween states  more  or  less  badly  administered.  This  is 
the  eternal  struggle  of  darkness  with  daylight,  and  it  is 
precisely  for  that  reason  that  we  shall  have  the  utmost 


280  THE   TWO   HAGUE   CONFERENCES 

difficulty  in  triumphing  over  the  resistance  opposed  to  the 
commissions.  It  is  necessary  to  make  up  our  minds  to 
that  fact,  and  to  make  concessions  for  the  sake  of  success." 
The  committee  accepted  this  view  of  the  situation ;  but 
at  the  instigation  of  its  chairman,  M.  Bourgeois,  of  France, 
decided  that  it  would  yield  only  in  the  last  extremity, 
and  after  a  debate  which  should  serve  the  purpose  of  en- 
lightening public  opinion  as  to  the  motives  of  both  sides. 
In  the  subcommission's  debate  on  the  committee's 
report,  M.  Beldiman,  of  Roumania,  was  the  leader  of  the 
opposition  to  the  commissions  of  inquiry,  and  in  a  long 
and  earnest  address  stated  some  of  the  reasons  for  this 
opposition  and  strove  to  justify  Roumania,  Servia,  and 
Greece  for  giving  voice  to  it.  After  stating  the  desires 
and  the  needs  of  Roumania  for  peace,  he  opposed  the 
proposed  commissions  of  inquiry  as  a  means  of  preserving 
it,  for  the  reasons,  first,  that  a  resort  to  them  would  be 
practically  compulsory,  since  it  is  not  always  suitable  or 
honest  to  invoke  on  every  occasion  a  country's  "honor  and 
vital  interests,"  in  order  to  prevent  an  inquiry  into  matters 
of  grave  political  importance ;  second,  that  an  estimate 
of  "honor  and  vital  interests"  would  vary  greatly  as 
between  different  states,  and  some  would  be  always  willing 
to  use  this  qualification  as  a  pretext  for  escaping  investiga- 
tion; third,  that  the  three  small  powers  referred  to  have 
gained  their  complete  independence  at  the  price  of  many 
hardships  and  sacrifices,  and  it  would  not  become  an 
international  conference  of  the  nations,  some  of  which 
aided  so  greatly  in  securing  that  independence,  to  make 
their  position  less  favorable  than  it  is  at  present  when 
commissions  of  inquiry  may  be  resorted  to  or  not  entirely 
at  will. 


ARBITRATION  281 

M.  Veljkovitch,  of  Servia,  added  to  the  above  argu- 
ments the  statement  that  at  the  bottom  of  every  request 
for  an  international  commission  of  inquiry  there  is  a  kind 
of  doubt  as  to  the  impartiality  of  the  investigation  made 
by  the  national  authorities  of  the  other  state,  while  the 
acceptance  of  the  proposal  to  name  an  international  com- 
mission of  inquiry  implies  a  willingness  to  subject  the 
action  of  its  own  authorities,  at  least  in  a  given  case,  to 
a  kind  of  international  control.  M.  Veljkovitch  argued 
also  that  in  a  dispute  between  a  large  power  and  a  small 
one,  the  large  power  would  not  always  be  disposed  to 
concede  to  the  small  power  the  same  susceptibilities  in 
the  matter  of  "honor  and  vital  interests"  which  it  would 
certainly  not  fail  to  claim  for  itself;  hence  the  smaller 
powers  would  sometimes  be  led  into  humiliating  dis- 
cussions as  to  whether  their  national  honor  was  really 
concerned  in  any  given  case,  while  it  would  usually  suffice 
for  the  larger  powers  to  invoke  the  argument  of  "national 
honor"  in  order  to  place  the  smaller  powers  in  the  moral 
impossibility  of  decently  provoking  a  discussion  on  the 
subject.  The  same  argument  held  true,  he  asserted,  — 
the  same  inequality  between  the  larger  and  the  smaller 
powers  would  exist  as  a  result,  —  of  the  other  qualifying 
clause,  "as  far  as  circumstances  permit."  The  smaller 
and  weaker  states  are  sometimes  compelled  to  submit 
to  inequality  which  exists  in  fact,  he  added;  "but  it  is 
absolutely  impossible  for  us  to  consecrate  this  inequality 
by  law  and  to  seal  it  by  our  signatures  in  an  interna- 
tional convention.  .  .  .  An  institution  which  would  only 
strengthen  the  strong  as  against  the  small  and  the  feeble 
would  be  directly  opposed,  not  only  to  the  tendency  of 
international  law,  but  also  to  every  idea  of  justice  and 


282  THE  TWO   HAGUE   CONFERENCES 

equity  in  general."  The  representative  of  Greece  added 
no  argument  to  the  above,  but  stated  emphatically  his 
adhesion  to  them,  and  his  opposition  to  the  proposed  com- 
missions of  inquiry.  On  the  other  hand,  the  representa- 
tives of  two  other  small  powers,  Bulgaria  and  Siam, 
warmly  advocated  their  adoption,  in  the  interests  of  truth, 
of  international  peace,  and  of  the  smaller  powers  them- 
selves. 

But  it  was  obvious  that  unanimity,  so  greatly  to  be 
desired  and,  indeed,  so  necessary  in  effective  international 
agreements,  could  not  be  secured  on  the  articles  as  pro- 
posed ;  and  it  was  generally  believed  that  the  opposition 
of  the  three  smaller  powers  was  secretly  supported  by  one 
or  more  of  the  larger  powers.  The  skilled  diplomatists 
of  the  conference,  accordingly,  first  made  an  appeal  for 
harmony  and  unanimity,  and  then  made  concessions. 
Chevalier  Descamps  appealed  to  that  sincere  devotion 
to  the  cause  of  international  peace  and  good-fellowship 
which  he  said  he  believed  was  strong  in  the  mind  of  every 
delegate  present,  and  which  was  not  at  all  inconsistent 
with  the  ardent  love  of  country  that  had  been  expressed. 
Professor  de  Martens  made  a  masterly  defense  of  inter- 
national commissions  of  inquiry,  and  then  an  eloquent 
appeal  in  behalf  of  internationalism  as  opposed  to  nation- 
alism, humanity  as  opposed  to  selfishness,  the  future  as 
opposed  to  the  present  and  the  past. 

"Gentlemen,"  he  said,  "if  in  private  life  he  is  happy  who  sees 
everything  rose-colored,  in  international  life  he  is  great  who  sees 
everything  in  the  large.  One  must  not  remain  in  the  lowlands  when 
one  wishes  to  enlarge  his  horizon !  Why  has  little  Holland  played 
so  great  a  role  in  history?  Why  are  its  ships  and  commerce  found 
on  every  ocean  ?     It  is  because  the  Hollanders  did  not  remain  behind 


ARBITRATION  283 

their  dunes :  they  climbed  to  their  tops ;  they  breathed  in  the  air  of 
the  open  sea;  they  saw  before  them  a  vast  horizon,  and  they  boldly 
entered  upon  the  paths  which  opened  before  them  and  which  placed 
them  in  direct  communication  with  all  the  nations  of  the  world.  This 
is  the  explanation  of  that  spirit  of  universality  which  has  always  dis- 
tinguished the  painters,  the  authors,  and  the  statesmen  of  this  small 
country. 

"But,  gentlemen,  Holland  has  done  still  more.  In  its  struggle 
against  the  invasion  of  the  sea,  it  made  canals  by  whose  means  its 
territorial  waters  and  those  of  the  sea  are  intermingled  and  assimilated, 
just  as  the  ideas,  the  institutions,  and  the  manners  of  the  Dutch  nation 
have  been  developed,  clarified,  and  crystallized  by  their  international 
relations.  May  it  not  be  said,  to  continue  the  comparison,  that  before 
the  common  horizon  of  humanity,  their  national  ideas  have  been  en- 
larged and  harmonized?  Let  us,  then,  follow  the  example  of  Hol- 
land :  let  us  climb  upon  our  dikes,  enlarge  our  horizon,  open  our  canals, 
and  prove  that  they  were  not  constructed  with  a  selfish  object  or  in  a 
spirit  of  exclusiveness.  Let  us  tear  down  the  barriers  erected  by 
prejudice,  and  then  we  shall  see,  prevailing  in  every  discussion,  a  spirit 
of  harmony  and  of  mutual  confidence.  Concord,  gentlemen,  should 
be  the  motto  and  the  aim  of  our  labors ! " 

M.  Beldiman  was  at  first  inclined  to  resent  this  appeal 
as  too  personal  to  himself  and  as  a  reflection  on  his  country ; 
but  he  was  assured  by  M.  Bourgeois,  president  of  the  sub- 
commission,  that  it  was  meant  solely  as  an  appeal  to  all 
the  members  of  the  conference  to  rise  above  their  own 
frontiers  and  to  consider  only  the  bounds  of  humanity. 
And  when  M.  Bourgeois  invited  the  delegates  of  Rou- 
mania,  Servia,  and  Greece  to  attend  the  next  meeting  of 
the  special  committee  and  suggest  amendments  to  the 
proposed  rules,  the  opposition  to  the  adoption  of  inter- 
national commissions  of  inquiry  under  any  conditions 
was  entirely  disarmed.  The  three  members  of  the  op- 
position attended  the  next  meeting  of  the  committee,  and 
were  met  in  such  a  cordial  spirit  of  conciliation  that  two 


284  THE   TWO   HAGUE   CONFERENCES 

of  them,  the  delegates  from  Servia  and  Greece,  soon 
reported  the  adhesion  of  their  governments  to  the  com- 
mittee's revised  statement.  This  statement  was  a  return 
towards  the  one  first  adopted  by  the  committee,  namely, 
that  "  the  signatory  powers  judge  it  useful  that  international 
commissions  of  inquiry  shall  be  established";  and  since 
this  left  their  establishment  purely  voluntary  on  the  part 
of  the  powers  in  dispute,  the  committee  omitted  the  two 
qualifying  clauses,  "involving  neither  the  honor  nor  the 
vital  interests  of  the  powers  concerned,"  and  "in  so  far  as 
circumstances  permit." 

But  Roumania  still  held  out,  and  at  the  next  meeting 
of  the  subcommission,  M.  Beldiman,  instead  of  reporting 
his  government's  adhesion  to  the  committee's  new  state- 
ment, presented  one  drafted  by  the  Roumanian  govern- 
ment itself.  In  doing  this,  he  said  that  the  Roumanian 
proposition  did  not  differ  essentially  from  the  committee's 
revised  statement,  except  that  it  restored  the  two  quali- 
fying clauses;  and  he  hinted  that  the  acceptance  of  inter- 
national commissions  of  inquiry  under  any  conditions  was 
as  much  of  a  concession  as  his  government  would  make. 

In  the  interest  of  unanimity,  and  to  secure  any  agreement 
on  the  vexed  subject,  Sir  Julian  Pauncefotc  and  Count 
Nigra  promptly  moved  that  the  Roumanian  proposition 
be  adopted ;  and  this  motion  was  carried  by  unanimous 
vote.  Thus,  international  commissions  of  inquiry  were 
admitted  to  the  Convention  of  1899  for  the  Peaceful 
Adjustment  of  International  Differences,  under  the  fol- 
lowing conditions :  In  differences  of  an  international 
nature  involving  neither  honor  nor  essential  interests, 
and  arising  from  a  difference  of  opinion  on  matters  of 
fact,  the  signatory  powers  judge  it  useful    that    parties 


ARBITRATION  285 

who  have  not  been  able  to  come  to  an  agreement  by 
diplomatic  negotiations  should  institute,  as  far  as  circum- 
stances permit,  an  International  Commission  of  Inquiry, 
charged  with  aiding  in  the  settlement  of  disputes  by  an 
impartial  and  thorough  investigation  and  statement  of 
the  facts  (Article  9). 

The  rules  regulating  these  commissions  of  inquiry, 
when  once  resorted  to,  were  condensed  within  five  articles, 
which  caused  but  little  discussion  or  opposition.  They 
provide,  first,  that  commissions  shall  be  constituted  by  a 
special  agreement  between  the  parties  to  the  controversy, 
which  shall  specify  also  the  facts  to  be  examined,  the 
extent  of  the  powers  of  the  commissioners,  and  the  method 
of  procedure ;  if  this  last  is  not  provided  for  in  the  agree- 
ment, the  commission  itself  shall  determine  it. 

M.  Eyschen,  of  Luxemburg,  proposed  this  rule  in  regard 
to  the  method  of  procedure.  His  first  proposition  was  that 
the  rules  of  procedure  adopted  for  international  arbitra- 
tion should  be  applied  also  to  international  commissions  of 
inquiry.  But  this  proposition  was  rejected,  for  the  reason 
that  the  function  of  commissions  of  inquiry,  being  simply 
to  ascertain  and  declare  facts,  is  very  different  from  that 
of  arbitration,  which  is  to  pass  upon  both  law  and  fact. 
But  M.  Eyschen  insisted  that  some  regulation  for  the 
procedure  of  commissions  should  be  given  or  indicated, 
if  they  were  to  render  the  services  justly  to  be  expected 
of  them,  and  that  this  is  especially  true  in  the  frequent  case 
where  the  commissions  would  be,  not  jurisconsults,  ac- 
customed to  technicalities  of  procedure,  but  men  who  hap- 
pen to  be  on  the  distant  scene  of  the  dispute,  and  who 
must  act  quickly  so  as  to  prevent  traces  of  the  truth  of  the 
matter  from  being  lost.     The  justice  of  these  observations 


286  THE   TWO   HAGUE   CONFERENCES 

was  admitted,  and  the  simple  rule  as  to  procedure  stated 
above  was  adopted,  together  with  the  express  proviso 
that  the  inquiry  shall  take  place  contradictorily ;  that  is, 
each  party  shall  be  informed  of  all  the  statements  made 
by  its  opponent,  and  both  sides  shall  be  heard  in  the 
inquiry. 

The  method  adopted  for  choosing  the  commissioners 
of  inquiry  was  the  same  as  that  adopted  for  the  choice 
of  arbitrators.  This  permits  the  disputants  themselves 
to  agree  upon  a  method  of  selection.  But,  in  default  of 
such  agreement,  it  is  provided  that  each  party  shall  ap- 
point two  commissioners  and  these  shall  together  choose 
an  umpire ;  in  case  of  an  equal  division  of  votes,  the  choice 
of  an  umpire  shall  be  intrusted  to  a  third  power,  selected 
by  the  parties  by  common  accord ;  if  no  agreement  is 
arrived  at  on  this  point,  each  party  shall  select  a  different 
power,  and  the  choice  of  an  umpire  shall  be  made  by 
agreement  between  the  powers  thus  selected.  Mr. 
Holls  proposed  that  instead  of  having  only  one  umpire, 
supposedly  neutral  and  impartial,  selected  by  the  four  com- 
missioners appointed  by  the  two  disputants,  there  should 
be  three  such  umpires.  In  support  of  this  proposition, 
he  argued  that,  in  case  of  a  tie  vote  between  the  four  com- 
missioners, the  deciding  vote  of  one  neutral  umpire  would 
not  be  so  influential  as  would  that  of  three,  or  two  out  of 
three.  But  the  proposition  was  not  accepted,  chiefly 
because  a  commission  of  seven  would  seem  rather  elab- 
orate and  expensive  for  the  settlement  of  many  minor 
difficulties. 

The  Russian  rules  included  one  binding  the  parties  in 
dispute  to  furnish  the  commission  of  inquiry  with  "all 
the  means  and  all  the  facilities  necessary  for  a  profound 


ARBITRATION  287 

and  conscientious  study  of  the  facts  in  the  case."  This 
was  objected  to  on  the  ground  that  a  commission  might 
demand,  innocently  or  with  hostile  intent,  information 
relating  to  the  security  of  one  of  the  states  in  dispute. 
It  was  therefore  stated  that  "the  powers  in  dispute  agree 
to  supply  the  commission,  to  the  largest  extent  that  they 
consider  it  possible,  with  all  the  means  and  all  the  facilities 
necessary  to  a  complete  understanding  and  exact  judg- 
ment of  the  facts  in  question  " 

It  is  further  provided  that  the  commission  of  inquiry 
shall  present  to  the  parties  in  dispute  its  report,  signed 
by  all  the  members  of  the  commission ;  and  that  this 
report,  limited  to  a  statement  of  the  facts,  shall  in  no  way 
have  the  character  of  an  arbitral  award,  and  shall  leave 
to  the  powers  in  dispute  entire  liberty  as  to  the  action 
which  shall  follow  the  said  statement  of  facts. 

This  last  clause  of  the  rule  was  purposely  left  indefinite 
so  as  to  emphasize  again  the  purely  voluntary  character 
of  international  commissions  of  inquiry.  The  clause  as 
proposed  by  the  Russian  delegation  left  the  powers  in 
dispute  entire  liberty  "either  to  conclude  an  amicable 
agreement  based  on  the  said  report,  or  to  agree  to  proceed 
to  arbitration,  or,  finally,  to  resort  to  acts  of  force  usual  in 
mutual  relations  between  nations."  Baron  d'Estournelles 
moved  to  retain  only  the  first  two  alternatives  and  to 
reject  the  last,  for  the  reason  that  it  was  unnecessary  and 
unsuitable  to  reserve  explicitly  the  right  of  war  in  a  con- 
vention adopted  by  a  conference  of  peace.  Professor  de 
Martens  replied  that  the  last  alternative  did  not  imply 
war,  but  only  reprisals ;  but  the  committee  adopted  Baron 
d'Estournelles's  motion.  In  the  discussion  in  the  sub- 
commission,  Dr.  Stancioff,  of  Bulgaria,  proposed  to  make 


288  THE  TWO   HAGUE   CONFERENCES 

the  two  alternatives:  "either  to  conclude  an  amicable 
agreement  based  on  the  said  report,  or  to  consider  the 
report  null  and  void."  The  subcommission  decided, 
however,  that  there  was  no  reason  for  emphasizing  thus 
forcibly  a  liberty  which  was  not  at  all  contested ;  and  on 
the  suggestion  of  M.  Odier,  of  Switzerland,  all  definite 
alternatives  were  omitted,  and  the  rule  was  given  its  present 
indefinite  ending. 

b.   The  Conference  of  1907 

The  Russian  programme  for  1907  specified  the  rules 
of  1899  concerning  international  commissions  of  inquiry 
as  needing  revision ;  and  at  the  first  meeting  of  the  sub- 
commission  in  July,  1907,  amendments  to  them  were 
offered  by  the  delegations  of  France,  Great  Britain,  Italy, 
the  Netherlands,  Russia,  and  Haiti. 

Haiti's  proposition,  that  the  signatory  powers  should 
"equally  suggest  to  the  parties  in  dispute  a  recourse  to 
international  commissions  of  inquiry,"  was  rejected  by 
the  committee  of  examination  for  the  nominal  reason  that 
it  presupposed  the  adoption  of  Haiti's  amendment  to 
Article  8,  concerning  special  mediation ;  but  why  this 
reason  should  have  been  advanced,  except  because  of  the 
word  "equally,"  which  could  have  been  readily  discarded, 
is  not  apparent.  Haiti's  argument  in  support  of  its  prop- 
osition was  that  two  powers  in  dispute  might  hesitate, 
for  highly  commendable  reasons,  to  suggest,  themselves, 
the  appointment  of  a  commission,  but  would  welcome 
the  suggestion  when  coming  from  one  or  more  disinterested 
third  parties;  moreover,  Article  27  of  the  Convention  of 
1899  authorizes  the  signatory  powers  to  remind  powers 


ARBITRATION  289 

in  dispute  that  the  court  of  arbitration  is  open  to  them. 
Despite  this  reasoning,  Haiti's  proposition  was  rejected, 
and  the  real  reason  therefor  would  seem  to  have  been  a 
determination  that  commissions  of  inquiry  should  not 
become  one  whit  more  obligatory  than  they  were  in  1899. 

The  Russian  and  Netherlands  delegations  proposed  that 
the  signatory  powers  should  "agree  to  establish"  inter- 
national commissions  of  inquiry,  instead  of  merely  de- 
claring that  they  judged  their  establishment  to  be  useful. 
This  was  a  return  to  the  rejected  proposal  of  1899,  and  at 
once  called  forth  vigorous  and  general  opposition.  Pro- 
fessor de  Martens,  of  Russia,  urged  in  support  of  the 
proposition  that  it  retained  the  two  qualifying  clauses  "in- 
volving neither  honor  nor  independence"  and  "if  cir- 
cumstances permit";  that  it  added  no  element  of  juristic 
obligation,  but  merely  recommended  emphatically  the 
use  of  such  commissions  whenever  possible ;  and  that 
the  rule  of  1899  would  positively  exclude,  by  its  phrase- 
ology, cases  in  which  honor  and  essential  interests  were 
involved,  whereas  his  proposition  would  permit,  though 
not  require,  such  cases  to  be  settled  by  the  commissions. 
M.  de  Beaufort,  of  the  Netherlands,  supported  the  Russian 
view  of  the  question,  and  desired  that  the  rule  should  be 
so  phrased  as  to  favor  the  use  of  commissions  in  every 
possible  case,  without,  however,  making  them  compulsory. 

The  opposition  to  the  Russian  proposal  was  very  em- 
phatic. Sir  Edward  Fry,  of  Great  Britain,  insisted  that 
it  would  give  an  obligatory  character  to  them  under  cer- 
tain conditions,  and  that  only  by  preserving  their  purely 
voluntary  character  could  their  usefulness  be  increased  or 
even  retained ;  he  also  said  that  the  case  of  the  Hull  fish- 
ermen, in  1905,  proved  that  the  rule  as  at  present  stated 


290      THE  TWO  HAGUE  CONFERENCES 

does  not  prevent  a  resort  to  international  commissions  of 
inquiry  for  cases  of  grave  import  and  even  for  those 
which  affect  national  honor  and  essential  interests.  Baron 
von  Bieberstein,  of  Germany,  opposed  the  Russian  propo- 
sition for  the  reason  that  its  adoption  would  seem  to  give 
an  obligatory  character  to  the  commissions,  since  the 
Conference  of  1899  had  rejected  the  same  proposition 
because  it  desired  to  emphasize  their  purely  voluntary 
character;  and  that  it  would  in  fact,  from  the  juristic 
point  of  view,  create  a  juris  vinculum,  that  is,  a  formal 
engagement  which  would  be  binding  in  all  cases  where 
honor  and  independence  are  not  involved  and  where 
circumstances  permit.  M.  Beldiman,  of  Roumania,  the 
champion  of  absolute  freedom  in  1899,  again  asserted, 
very  briefly,  but  emphatically,  his  opposition  to  any 
rule  even  seemingly  obligatory.  Delegates  from  Turkey, 
Greece,  Austria,  and  Servia  voiced  their  opposition  to 
any  appearance  of  obligation.  M.  Ruy  Barbosa,  of 
Brazil,  objected  to  the  Russian  proposition's  substitution 
of  the  qualifying  clause,  "involving  neither  honor  nor  in- 
dependence," for  "involving  neither  honor  nor  essential 
interests";  and  he,  too,  insisted  upon  the  retention  of  the 
purely  voluntary  character  of  the  commissions. 

After  this  almost  universal  opposition  in  the  subcom- 
mission,  the  Netherlands  delegation  withdrew  its  propo- 
sition in  the  committee  of  examination ;  but  Professor 
de  Martens  made  another  attempt  to  secure  the  adoption 
of  the  Russian  proposition.  He  insisted  that  the  present 
wording  of  the  rule  can  paralyze  all  action  on  the  part  of 
mediating  powers  which  may  judge  it  useful  for  inter- 
national commissions  of  inquiry  to  be  resorted  to  by  con- 
flicting states.     But  the  fears  of  the  smaller  powers,  as 


ARBITRATION  291 

manifested  in  1899  and  again  in  the  recent  subcommis- 
sion's  debate,  were  recalled,  and  the  large  powers,  too,  were 
a  unit  in  opposing  the  Russian  amendment.  Admitting 
the  impossibility  of  securing  his  first  amendment's  adop- 
tion, Professor  de  Martens  next  moved  to  add  to  the 
commissions'  duty  of  "aiding  in  the  settlement  of  dis- 
putes by  an  impartial  and  thorough  investigation  and 
statement  of  the  facts,"  the  further  duty  of  "fixing,  if 
necessary,  the  responsibility  for  the  facts."  He  explained 
that  he  did  not  desire  to  identify  commissions  of  inquiry 
with  courts  of  arbitration,  but  merely  to  have  the  com- 
missions state  the  responsibility  which  was  logically 
evolved  from  an  impartial  statement  of  the  facts  in  the 
case.  But  here,  again,  he  met  with  the  emphatic  oppo- 
sition of  the  representatives  of  five  of  the  great  powers,  and 
the  Russian  amendments  to  Article  9  were  withdrawn. 

The  only  amendment  which  the  committee  would  accept 
for  the  much  disputed  Article  9  was  to  add  to  the  phrase 
"the  signatory  powers  judge  it  useful"  the  words  "and 
desirable"  —  that  international  commissions  of  inquiry 
should  be  resorted  to.  These  two  words  (" and  desirable") 
had  been  adopted  unanimously,  as  we  have  seen,  as  an 
addition  to  the  rule  regarding  good  offices  and  mediation 
(Article  3),  and  it  was  agreed  that  they  should  be  added 
wherever  in  the  convention  occur  the  words  "judge 
it  useful." 

The  other  amendments  to  the  articles  on  international 
commissions  of  inquiry  had  nothing  to  do  with  questions 
of  principle,  but  only  with  practical  arrangements.  Amend- 
ments were  offered  to  each  of  the  other  five  original  articles 
(Nos.  10  to  14),  and  twenty-two  new  articles  were  adopted 
for  the  purpose  of  supplying  a  ready-made  code  of  pro- 


292 


THE   TWO   HAGUE   CONFERENCES 


cedure  which  commissions  might  make  use  of,  and  which 
might  facilitate  both  the  work  of  commissions  and  the 
resort  to  them. 

The  French  and  British  propositions  were  so  much 
alike  that  they  were  combined  in  one  project,  which  was 
made  the  basis  of  discussion  and  revision.  Professor 
de  Martens,  and  M.  Fusinato,  of  Italy,  criticised  the 
Franco-British  amendments  as  being  too  numerous,  — 
an  entire  code  of  procedure,  in  contrast  to  the  two  or  three 
rules  adopted  in  1899;  they  argued,  too,  that  so  many 
rules  would  endanger  a  commission's  report  being  declared 
null  and  void  because  of  the  infraction  of  one  of  them. 
But  the  committee  accepted  Sir  Edward  Fry's  view  that 
experience,  in  the  case  of  the  Hull  fishermen  before  the 
Commission  of  Paris,  had  shown  the  necessity  of  all  the 
rules  proposed,  and  the  loss  of  precious  time  at  a  critical 
period  in  drawing  them  up  and  agreeing  upon  them; 
that  these  rules  were  not  to  be  imposed  upon  commissions 
of  inquiry,  but  merely  recommended  to  them.  Moreover, 
added  M.  Bourgeois,  of  France,  the  infraction  of  one  of 
the  rules  made  by  a  treaty  instituting  a  commission  of 
inquiry  could  quite  as  readily  be  made  a  pretext  for  nul- 
lifying the  commission's  report  as  could  the  infraction  of 
one  proposed  by  the  conference. 

The  few  rules  of  procedure  adopted  in  1899  were  only 
slightly  modified.  The  former  method  of  appointment 
of  commissioners  was  retained ;  but  to  it  was  added  the 
rule  that  the  umpire  shall  preside  over  the  commission,  or, 
when  the  commission  does  not  include  an  umpire,  it  shall 
appoint  its  own  presiding  officer. 

To  the  former  statement  that  the  powers  in  dispute  agree 
to  supply  the  commission,  as  fully  as  they  may  consider 


ARBITRATION  293 

it  possible,  with  all  means  and  facilities  necessary  to  a 
complete  understanding  and  exact  judgment  of  the  facts 
in  question,  the  further  statement  was  added  that  the 
powers  in  dispute  agree  to  use  the  means  at  their  disposal, 
in  accordance  with  their  domestic  legislation,  to  procure 
the  appearance  of  witnesses  or  experts  living  upon  their 
territory  and  cited  before  the  commission,  and  that,  if 
such  witnesses  and  experts  can  not  appear  before  the 
commission,  the  powers  will  have  them  examined  before 
the  competent  authorities.  This  agreement  gives  no 
authority  in  regard  to  the  compulsion  of  witnesses  and 
experts  to  the  commission,  but  leaves  it  all  to  the  powers 
on  whose  territory  they  may  be  living  (se  tronvant) ;  but, 
on  the  other  hand,  whatever  be  their  nationality,  and 
although  they  be  merely  temporary  residents  or  exiles  on 
the  territory  of  one  of  the  powers,  that  power  is  not  only 
authorized,  but  is  held  to  be  morally  and  juristically  bound, 
to  provide  for  their  appearance  and  testimony. 

One  of  the  rules  of  1899  provided  that  the  international 
commission  should  present  to  the  powers  in  dispute  its 
report,  signed  by  all  the  members  of  the  commission. 
This  rule  was  revised  so  as  to  provide  that  the  report  shall 
be  adopted  by  majority  vote,  and  signed  by  all  the  members 
of  the  commission ;  if  one  of  the  members  refuses  to  sign, 
the  fact  will  be  mentioned,  but  the  majority's  report  will 
be  considered  valid. 

The  Russian  delegation  proposed,  and  the  United  States 
delegation  supported,  the  revision  of  the  rule  of  1899 
which  provided  that  the  commission's  report,  limited  to  a 
statement  of  the  facts,  shall  in  no  way  have  the  character 
of  an  arbitral  award,  but  shall  leave  the  powers  in  dispute 
entire  liberty  as  to  the  action  which  shall  follow  the  said 


294  THE   TWO   HAGUE   CONFERENCES 

statement  of  fact.  The  proposed  revision  provided  that 
the  powers  in  dispute,  having  taken  cognizance  of  the 
statement  of  facts  and  responsibilities  issued  by  the  com- 
mission, are  free  either  to  conclude  an  amicable  arrange- 
ment, or  to  resort  to  the  Permanent  Court  of  Arbitration 
at  The  Hague.  This  proposition  was  opposed  by  the 
committee  of  examination  for  the  reason  that  it  would 
leave  arbitration  as  the  only  alternative  to  an  amicable 
settlement  of  the  dispute,  and  this  semi-compulsory  fea- 
ture, it  was  feared,  would  prevent  a  frequent  resort  to 
commissions  of  inquiry. 

The  twenty-two  new  rules  adopted  by  the  conference 
met  with  very  little  opposition  or  discussion.  One  of  these, 
that  the  questioning  of  witnesses  shall  be  conducted  by 
the  president  of  the  commission,  or,  for  supplementary 
information,  by  its  members,  met  with  the  suggestion  from 
Sir  Edward  Fry,  and  Dr.  Scott,  of  the  United  States,  that 
the  Anglo-Saxon  system  of  direct  questioning  of  witnesses 
by  the  agents  of  the  parties  to  the  dispute  should  be  sub- 
stituted for  it.  But  the  committee  decided  that  an  Anglo- 
Saxon,  would  be  but  little  embarrassed  by  being  ques- 
tioned by  the  president  of  a  commission,  while  a  French, 
Austrian,  or  German  witness  might  be  very  much  dis- 
concerted by  having  to  reply  to  questions  put  directly  by 
an  advocate,  since  the  system  of  "  cross-examination  "  was 
foreign  to  continental  usage.  The  agents  are  permitted, 
however,  to  request  the  president  to  ask  the  questions 
they  desire. 

One  of  the  new  rules  which  gave  rise  to  some  discussion 
provides  that  the  sessions  of  the  commission  shall  not  be 
public  and  the  minutes  and  documents  shall  not  be  pub- 
lished, unless  so  decided  by  the  commission  with  the  con- 


ARBITRATION 


295 


sent  of  the  parties  in  dispute.  This  non-publicity  was 
justified  for  the  reason  that  witnesses  might  sometimes 
be  annoyed  as  a  result  of  publicity,  and  that  it  would  be 
always  easier  for  a  commission  to  decide  upon  public 
sessions,  if  so  desired,  than  to  make  its  sessions  secret. 

Among  the  new  rules  adopted  with  no,  or  but  little,  dis- 
cussion may  be  noted  the  following :  The  designation  of 
The  Hague  as  the  place  of  meeting  for  all  international 
commissions  of  inquiry,  unless  some  other  place  is  agreed 
upon  by  treaty  between  the  parties  in  dispute ;  the  desig- 
nation of  the  International  Bureau  of  the  Permanent 
Court  of  Arbitration  as  the  secretariat  for  all  commis- 
sions which  meet  at  The  Hague,  and  as  the  depositary  of 
the  archives  after  the  inquiry  is  ended ;  and  the  permis- 
sion to  commissions  to  remove  temporarily  to  those  places 
where  more  information  may  be  secured,  and  to  apply 
directly  to  neutral  powers  for  permission  to  come  upon 
their  territory  if  necessary. 

The  articles  reported  by  the  committee  and  subcommis- 
sion  to  the  commission  and  conference  were  adopted 
unanimously  and  without  discussion.  But  on  their  adop- 
tion by  the  commission,  M.  Beldiman  said  that  on  the  eve 
of  a  wider  debate  upon  the  principle  of  obligation  in  the 
matter  of  international  arbitration,  it  seemed  to  him  "<fe- 
sirable"  to  complete,  by  a  simple  statement  of  facts,  the 
history  of  the  article  which  introduced  among  agencies 
for  peace  international  commissions  of  inquiry  (Article 
9).  He  then  recalled  the  famous  debate  of  1899  and 
Roumania's  part  in  it,  and  said  : 

"The  report  addressed  to  their  government  by  the  delegates  of  the 
French  Republic,  whom  we  are  happy  to  see  with  us  to-day  also,  con- 
tained an  echo  of  the  lively  debate  which  preceded  the  adoption  of  this 


296  THE   TWO   HAGUE   CONFERENCES 

article,  and,  according  to  the  text  published  in  the  'yellow  book,' 
this  report  explains  the  attitude  taken  in  the  matter  by  Greece,  Rou- 
mania,  and  Servia  in  these  words:  'They  (that  is  to  say,  the  delegates 
of  those  states)  plead  in  fact  the  cause  of  bad  government.'  ...  It 
is  proper  to  state  simply  for  the  sake  of  historic  truth  that  the  attitude 
taken  in  1899,  in  this  question  of  principle,  by  Greece,  Roumania,  and 
Servia,  could  have  been  interpreted  at  that  time  as  having  its  source 
rather  in  the  special  conditions  which  exist  in  our  Eastern  countries. 
"To-day  this  principle  has  been  unanimously  admitted,  and  it  has 
not  even  been  seriously  discussed  by  the  present  conference.  From 
the  first,  the  propositions  of  France  and  Great  Britain  relative  to 
international  commissions  of  inquiry  have  retained,  without  a  single 
modification,  the  text  of  Article  9,  just  as  it  was  voted  in  1899.  The 
delegation  of  Russia  has  come  to  its  support,  and  it  has  been  stated 
that  there  is  complete  unanimity  on  the  purely  voluntary  character 
which  has  been  retained  for  this  international  institution.  It  is 
proper,  then,  to  assert  that,  as  far  as  this  matter  is  concerned,  it  can  not 
be  said  that  there  has  been  progress  during  the  last  eight  years  in 
the  principle  of  obligation." 

M.  de  Martens,  in  reply  to  this  speech,  reaffirmed  the 
unanimity  of  the  conference  on  the  purely  voluntary 
character  of  international  commissions  of  inquiry,  but 
said  that  this  very  fact  made  even  plainer  the  defective 
phraseology  of  Article  9.  "The  powers  are  sovereign," 
he  declared,  "and  their  right  of  having  recourse  to  these 
commissions  is  not  subject  to  a  single  limitation.  But 
Article  9  is  formulated  in  such  a  way  as  to  seem  to  forbid 
recourse  to  these  commissions  in  cases  where  honor  and 
essential  interests  are  involved.  ...  Is  this  phraseology 
really  true?  Does  it  reflect  accurately  the  condition  of 
affairs  before  the  Commission  of  Paris  on  the  incident  at 
Hull,  in  which  the  'essential  interests,'  if  not  'the  honor,' 
of  two  great  powers  were  involved  ?  The  conference  has 
profited  by  the  experience  of  the  Commission  of  Paris 


ARBITRATION 


297 


only  to  elaborate  a  code  of  procedure  which,  in  my  opinion, 
is  really  too  detailed ;  but,  on  the  other  hand,  it  seems  to 
have  desired  to  ignore  the  most  remarkable  historic  les- 
son which  is  taught  by  this  celebrated  case :  for,  in  spite 
of  the  Inquest  of  Hull,  it  has  not  been  willing  to  declare 
'useful  and  desirable'  the  recourse  to  international  com- 
missions of  inquiry  in  every  occurrence."  In  conclusion,  he 
said  that  he  had  no  proposition  to  make  at  that  late  date 
in  the  conference's  labors;  that  he  merely  desired  to  ex- 
press once  more  his  point  of  view,  which  he  believed  to 
conform  to  the  teachings  of  history. 


C.    OBLIGATORY   ARBITRATION 

1.    Arbitration  in  General 
a.    The  Conference  of  i8gg 

The  Russian  Emperor's  rescript  of  August,  1898,  con- 
tained the  oft-quoted  words : 

"The  maintenance  of  general  peace,  and  the  possible  reduction  of 
the  excessive  armaments  which  weigh  upon  all  nations,  present  them- 
selves, in  the  existing  condition  of  the  world,  as  the  ideal  towards 
which  the  endeavors  of  all  governments  should  be  directed.  ...  In 
the  course  of  the  last  twenty  years  the  longings  for  a  general  peace 
have  become  especially  pronounced  in  the  consciences  of  civilized 
nations.  The  preservation  of  peace  has  become  the  object  of  inter- 
national politics;  in  its  name,  great  states  have  made  powerful  alli- 
ances; for  the  better  guarantee  of  peace,  they  have  developed,  in 
proportions  hitherto  unprecedented,  their  military  forces,  and  still 
continue  to  increase  them  without  shrinking  from  any  sacrifice. 
All  these  efforts,  however,  have  not  yet  been  able  to  bring  about  the 
beneficent  results  of  the  desired  pacification." 


298  THE  TWO   HAGUE   CONFERENCES 

The  Czar  therefore  proposed  the  meeting  of  an  interna- 
tional conference,  which,  he  said,  "should  be,  by  the  help 
of  God,  a  happy  presage  for  the  century  which  is  about  to 
commence,"  and  which  should  have,  as  one  of  its  prime 
objects,  the  discussion  of  mediation  and  voluntary  arbi- 
tration as  means  of  preventing  armed  conflicts  between 
nations. 

M.  Staal,  of  Russia,  president  of  the  first  conference, 
asserted  in  his  opening  address  that  the  prevention  of 
conflicts  by  generalizing,  by  codifying,  the  practice  of 
arbitration  and  mediation  was  the  very  essence  of  the  con- 
ference's task.  "Diplomacy,"  he  said,  "long  ago  ad- 
mitted, among  the  means  of  preserving  peace,  a  resort  to 
arbitration  and  mediation ;  but  it  has  not  defined  the  con- 
ditions of  their  employment,  nor  determined  the  cases  to 
which  they  are  applicable.  It  is  to  this  high  task  that  we 
are  about  to  devote  our  efforts,  sustained  by  the  conviction 
that  we  are  laboring  for  the  welfare  of  all  mankind  and 
in  the  path  marked  out  for  us  by  preceding  generations." 

At  the  first  meeting  of  the  Arbitration  Commission, 
the  Russian  delegation  presented  a  series  of  eighteen 
articles,  six  of  which  were  to  regulate  good  offices  and 
mediation,  five  were  to  be  applied  to  international  com- 
missions of  inquiry,  and  seven  were  to  provide  for  the 
scope  of  arbitration  and  for  arbitral  procedure.1  In 
presenting  these  articles  and  an  explanatory  note  attached 
to  them,  the  delegation  pointed  out  the  difference  in  scope 
between  voluntary  and  obligatory  arbitration.  Volun- 
tary arbitration,  it  said,  is  applicable  to  every  kind  of 
international  dispute  whatsoever,  for  it  is  resorted  to  only 

1  The  court  of  arbitration  was  proposed  later,  as  we  shall  see,  by  the  British 
delegation, 


ARBITRATION  299 

after  an  agreement  between  the  parties  in  dispute  to  sub- 
mit the  case  in  question  to  this  method  of  settlement. 
Obligatory  arbitration,  on  the  other  hand,  does  not 
depend  upon  the  special  consent  of  the  parties  concerned. 
Hence  it  goes  without  saying  that  obligatory  arbitration 
can  not  be  applied  to  all  cases  and  to  all  kinds  of  disputes. 
There  is  no  government  which  would  consent  to  accept 
in  advance  the  obligation  of  submitting  to  the  decision  of 
a  tribunal  of  arbitration  every  difference  arising  within 
the  international  domain,  if  it  affected  the  national  honor 
of  the  state,  its  superior  interests,  and  its  imprescriptible 
welfare.  At  present,  the  mutual  rights  and  duties  of 
states  are  determined,  to  a  noteworthy  extent,  by  the  sum 
of  what  are  called  "political  treaties,"  which  are  nothing 
else  than  the  temporary  expression  of  casual  and  transi- 
tory relations  between  diverse  national  forces.  .  .  .  The 
conflicts  which  arise  within  the  field  of  political  treaties 
are  connected,  in  the  majority  of  cases,  not  so  much  with  a 
difference  of  interpretation  of  such  or  such  law,  as  with 
amendments  to  it  or  with  its  complete  abrogation.  The 
powers  which  take  an  active  part  in  the  political  life  of 
Europe  can  not,  then,  submit  conflicts  arising  within  the 
field  of  political  treaties  to  examination  by  a  tribunal  of 
arbitration  in  whose  eyes  the  law  established  by  treaty 
would  be  quite  as  obligatory,  quite  as  inviolable,  as  a  law 
established  by  legislation  would  be  in  the  eyes  of  any  na- 
tional tribunal.  From  the  point  of  view  of  practical  poli- 
tics, then,  the  impossibility  of  universal  obligatory  arbi- 
tration would  appear  to  be  evident.  But  from  another 
point  of  view,  it  is  beyond  doubt  that  international  differ- 
ences often  arise,  to  whose  solution  arbitration  can  be 
always  and  absolutely  applied ;  these  are  differences  which 


300 


THE   TWO   HAGUE   CONFERENCES 


concern  exclusively  special  points  of  law,  and  which  touch 
neither  the  vital  interests  nor  the  national  honor  of  states. 
It  can  not  but  be  hoped  that  the  Peace  Conference  will 
prescribe  arbitration  as  the  permanent  and  obligatory 
means  of  settlement  for  this  latter  class  of  differences. 

This  Russian  point  of  view  was  shared  by  the  conference 
as  a  whole;  universal  obligatory  arbitration  was  con- 
sidered utterly  impossible  under  existing  conditions,  and 
no  delegation  so  much  as  proposed  it.  On  the  other  hand, 
the  conference,  almost  unanimously,  shared  the  desire  to 
relegate  certain  classes  of  disputes  to  the  invariable  solu- 
tion of  arbitration ;  but  the  twofold  question,  as  to  which 
classes  of  disputes  these  should  be,  and  as  to  the  obliga- 
tory character  of  the  arbitration,  proved  to  be  one  of  much 
difficulty  and  diversity  of  opinion. 

The  esteem  in  which  the  conference  held  arbitration  as 
a  solution  of  international  differences  was  evident  on  nu- 
merous occasions  and  in  several  articles  adopted  by  it. 

Chevalier  Descamps,  of  Belgium,  said  in  his  report  on 
arbitration,  which  was  adopted  unanimously,  that  arbi- 
tration belongs  par  excellence  to  the  organic  institutions  of 
juristic  peace  between  nations.  "It  has  proved  its  value," 
says  the  report ;  "it  has  increased  more  and  more  in  inter- 
national usage.  It  has  all  the  sympathies  of  the  present ; 
it  has  the  richest  promises  for  the  future.  The  time 
seems  to  have  come  for  giving  it,  together  with  a  broader 
scope  and  a  firmer  organization,  the  place  in  international 
law  assigned  it  by  the  progress  of  international  relations 
and  the  juristic  conscience  of  civilized  peoples.  .  .  .  Ar- 
bitral justice  does  not  have  in  international  law  the  charac- 
ter which  it  has  in  national  law.  In  the  latter,  it  would 
seem  like  a  kind  of  derogation  from  the  public  organization 


ARBITRATION  301 

of  justice;  in  international  law,  it  supplies  the  place  of  all 
jurisdiction  and  it  tends  directly  to  prevent  a  recourse  to 
force.  Arbitral  justice  is  not  a  thoughtless  abdication, 
but  on  the  contrary  an  enlightened  use,  of  the  sovereignty 
of  states.  It  presents  itself  to  us  as  the  procedure  most 
consistent  with  reason,  humanity,  and  the  true  interests  of 
the  parties  in  dispute.  .  .  .  The  farther  law  progresses 
and  penetrates  within  the  society  of  nations,  the  more  arbi- 
tration is  shown  to  be  united  to  the  structure  of  that 
society.  A  solution,  at  once  pacific  and  juristic,  of  inter- 
national differences,  it  presents  itself  to  us  as  the  proper 
instrument  for  assuring  the  right  of  each  while  safeguard- 
ing the  dignity  of  all." 

The  preamble  of  the  Convention  for  the  peaceful 
Adjustment  of  International  Differences,  which  was  also 
adopted  unanimously,  emphasizes  the  opinion  of  the 
conference  as  to  the  value  of  arbitration,  in  the  following 
phrases : 

"Animated  by  a  strong  desire  to  cooperate  for  the  maintenance  of 
general  peace ;  Resolved  to  advance  by  their  best  efforts  the  friendly 
settlement  of  international  disputes;  Recognizing  the  solidarity 
which  unites  the  members  of  the  society  of  civilized  nations ;  Desirous 
of  extending  the  empire  of  law  and  of  strengthening  the  sentiment  of 
international  justice;  Convinced  that  the  permanent  institution  of  a 
court  of  arbitration  in  the  midst  of  independent  powers  and  accessible 
to  all  of  them  can  contribute  effectively  to  this  result ;  Having  regard 
for  the  advantages  attending  the  general  and  regular  organization  of 
arbitral  procedure.  .  .  ." 

Several  of  the  articles  of  the  convention  were  of  a  general 
character  and,  instead  of  laying  down  specific  rules,  em- 
phasized the  desirability  of  arbitration. 

The  first  article,  which  has  in  view  good  offices  and  medi- 


302  THE  TWO   HAGUE  CONFERENCES 

ation  as  well  as  arbitration,  states  that,  with  a  view  to 
preventing  as  far  as  possible  recourse  to  force  in  relations 
between  states,  the  signatory  powers  agree  to  put  forth  all 
their  efforts  to  insure  the  pacific  settlement  of  international 
differences. 

Articles  15  to  18,  which,  together  with  Article  19,1  form 
the  introductory  chapter  ("On  Arbitral  Justice")  to  the 
subject  of  international  arbitration  proper,  state  both  the 
desirability  and  the  voluntary  character  of  the  arbitra- 
tion agreed  upon.  The  object  of  international  arbitration 
is  declared  to  be  the  settlement  of  controversies  between 
states  by  judges  of  their  own  choice  and  upon  the  basis 
of  respect  for  law  (Article  15).  The  signatory  powers  rec- 
ognize arbitration,  in  questions  of  a  judicial  character,  and 
especially  in  questions  regarding  the  interpretation  or 
application  of  international  treaties,  to  be  the  most  effi- 
cacious and  at  the  same  time  the  most  equitable  method 
of  deciding  controversies  which  have  not  been  settled  by 
diplomatic  means  (Article  16). 

When  this  last  article  was  reported  to  the  commission, 
M.  Beldiman,  of  Roumania,  made  the  following  declara- 
tion:  "The  Royal  Government  of  Roumania,  acquiescing 
entirely  in  the  principle  of  voluntary  arbitration,  whose 
whole  importance  in  international  relations  it  appreciates, 
does  not  understand,  however,  from  this  article  an  en- 
gagement to  accept  arbitration  in  all  the  cases  anticipated 
by  it ;  it  can  vote  for  this  article,  therefore,  only  under 
this  reserve.''  With  this  exception,  the  artigle  was  agreed 
to  unanimously ;  for  it  was  recognized  that  the  sovereignty 
of  each  state  was  left  unimpaired  by  it,  since  each  state 
would  retain  the  right  of  deciding  whether  or  not  any  given 

1  Article  19  is  discussed  under  Specific  Cases  of  Arbitration,  pages  330-331. 


ARBITRATION 


303 


case  was  of  a  judicial  character,  or  was  connected  with  the 
interpretation  or  application  of  treaties;  and  such  cases 
they  were  all,  except  Roumania,  entirely  willing  to  submit 
to  arbitration. 

Article  16,  it  must  be  noted,  has  to  do  with  cases  of  a 
judicial  character  or  connected  with  treaties;  that  is, 
questions  of  law  or  those  based  on  documents,  which 
questions  can  alone  be  decided  by  judges  properly  so  called. 
General  arbitration,  or  arbitration  of  differences  as  to 
political,  territorial,  or  commercial  interests,  was  not 
agreed  to  by  the  powers  collectively ;  but  they  adopted  the 
statement  that  an  agreement  of  arbitration  may  relate  to 
every  kind  of  controversy  or  solely  to  controversies  of  a 
particular  character,  and  may  be  made  with  reference  to 
disputes  already  existing  or  to  those  which  may  thereafter 
arise  (Article  17).  Baron  de  Bildt,  of  Sweden  and  Nor- 
way, thought  this  article  superfluous,  and  asked,  "Why 
inscribe  a  law  which  all  the  world  has  already?"  Cheva- 
lier Descamps,  Count  Nigra,  of  Italy,  and  Professor  Lam- 
masch,  of  Austria,  answered  the  question  by  saying  that 
it  was  desirable  to  call  attention  to  the  great  number  of 
treaties  of  arbitration  which  had  already  been  concluded, 
to  give  the  indorsement  of  the  conference  to  them,  and  to 
encourage  the  nations  to  push  on  farther  and  faster  in  the 
good  work  of  concluding  more  of  them.1 

A  treaty  of  arbitration  may  obviously  apply  to  differences 
of  the  past,  present,  or  future,  as  the  parties  making  the 
treaty  may  determine.     This  fact  was  recognized  by  the 

1  Chevalier  Descamps  prepared  at  the  request  of  the  III  Commission 
a  summary  statement  of  the  large  number  of  arbitration  agreements  which 
had  been  entered  into  between  the  various  governments  represented  at  the 
conference;  this  statement  was  printed  and  distributed  to  the  members,  and 
is  published  with  the  records  of  the  conference. 


304  THE  TWO   HAGUE   CONFERENCES 

above  article ;  but  at  the  time  of  its  adoption,  M.  Beldiman 
stated  that  his  government  would  accept  the  article  only 
under  the  reserve  that  it  did  not  apply  to  any  differences 
or  disputes  which  had  arisen  "before  the  conclusion  of  the 
present  convention." 

The  statement  that  a  treaty  of  arbitration  implies  the 
obligation  of  submitting  in  good  faith  to  the  decision  of 
the  arbitral  tribunal  (Article  18),  was  also  objected  to  for 
the  reason  that  it  was  superfluous ;  but  it  was  defended 
and  adopted  on  the  express  ground  that  it  emphasized 
the  characteristic  feature  of  arbitration,  which  is  not  that 
of  an  attempt  at  conciliation,  but  the  mutual  submission 
of  states  to  judges  of  their  own  choice,  with  the  natural 
consequence  that  a  repudiation  of  the  arbitral  award  is  no 
more  admissible  than  is  the  violation  of  contracts.  In 
regard  to  this  article,  also,  M.  Beldiman  made  the"  reserva- 
tion that  his  government  accepted  it  only  on  the  under- 
standing that  it  implied  no  agreement  in  the  nature  of 
obligatory  arbitration. 

One  other  article,  of  noteworthy  character  and  interest, 
was  adopted  by  the  conference  for  the  purpose  of  pro- 
moting the  utmost  possible  resort  to  arbitration.  This 
was  a  statement  that  "the  signatory  powers  consider  it 
their  duty,  in  case  a  serious  dispute  threatens  to  break 
out  between  two  or  more  of  them,  to  remind  the  latter 
that  the  Permanent  Court  of  Arbitration  1  is  open  to  them. 
Hence  they  declare  that  the  act  of  reminding  the  parties 
in  dispute  of  the  provisions  of  the  present  Convention,  and 
the  advice  given  to  them,  in  the  higher  interests  of  peace, 
to  have  recourse  to  the  permanent  court,  can  only  be 
considered  as  an  exercise  of  good  offices"  (Article  27). 

1  See  page  370. 


ARBITRATION 


305 


The  French  delegation  presented  this  proposition,  and 
M.  Bourgeois  and  Baron  d'Estournelles,  of  that  delegation, 
urged  in  its  favor  that  sometimes  a  point  of  honor  causes 
each  party  to  the  dispute  to  hesitate  to  suggest  arbitration 
to  its  opponent ;  and  that  public  opinion  is  easily  led  to 
consider  such  a  suggestion  as  an  act  of  weakness  rather 
than  as  an  evidence  of  confidence  in  its  own  good  cause 
and  of  moderation  founded  on  a  spirit  of  justice ;  hence 
each  party  waits  for  the  other  to  take  the  initiative.  Several 
delegations  supported  this  proposition,  but  the  practical 
question  arose  as  to  the  agency  which  should  act  as  inter- 
mediary between  the  powers  in  general  and  the  powers 
in  dispute.  M.  Bourgeois  suggested,  in  reply,  the  inter- 
national bureau  or  the  diplomatic  council1  established 
at  The  Hague  in  connection  with  the  Permanent  Court 
of  Arbitration ;  but  Professor  de  Martens,  of  Russia,  ob- 
jected that  the  bureau  would  not  possess  sufficient  moral 
authority,  while  the  diplomatic  council  would  be  bound  by 
the  instructions  of  each  of  its  members,  and  hence  could 
not  act  with  sufficient  independence.  Baron  d'Estour- 
nelles then  proposed  that  the  secretary-general  of  the 
international  bureau  should  act  as  the  agent  of  the  powers, 
and  on  the  express  demand  of  one  or  more  powers,  in 
calling  the  disputants'  attention  to  the  Permanent  Court 
of  Arbitration.  With  the  powers  behind  him,  it  was 
urged,  the  secretary-general  would  have  sufficient  moral 
authority,  while  his  modest  character  of  an  agent  could 
give  no  affront  to  the  disputants.  To  this  suggestion  it 
was  objected  that  the  secretary-general  might  intervene 
with  his  invitation  at  an  unfortunate  moment  and  thus 
aggravate  the  dispute,  and  that  especially  he  might  thus 

1  See  pages  375~378- 


306  THE  TWO   HAGUE   CONFERENCES 

cause  the  permanent  court  itself  to  fall  into  disrepute. 
Baron  d'Estournelles's  proposition  was  put  to  vote  in  the 
committee  and  rejected  by  a  vote  of  five  to  three,  with  two 
abstentions. 

But,  on  the  other  hand,  the  committee  was  unanimous 
in  its  desire  that  in  some  way  the  powers  should  encourage 
disputants  to  have  recourse  to  the  Permanent  Court  of 
Arbitration.  The  proposition  was  made  that  the  secre- 
tary-general might  appeal  to  one  or  more  neutral  powers 
to  extend  the  invitation  to  arbitrate;  and  also  that  the 
judges  of  the  permanent  court,  scattered  as  they  are 
among  all  the  nations,  should  appeal  to  their  respective 
governments  to  act.  These  propositions  did  not  meet 
with  favor,  however,  and  the  committee  at  last  adopted 
unanimously  the  statement  that  it  is  the  duty  of  the  powers 
to  suggest  arbitration  to  disputants,  leaving  the  powers 
themselves  to  find  the  best  practical  method  of  making  the 
suggestion. 

When  this  article  was  presented  to  the  commission, 
M.  Beldiman  repeated  his  statement  that  his  government 
would  subscribe  to  absolutely  nothing  but  voluntary 
arbitration,  and  suggested  that  the  words  "consider  it 
their  duty  "  be  replaced  by  "judge  it  useful."  This 
suggestion  caused  Baron  d'Estournelles  to  make  a  vig- 
orous defense  of  the  use  of  the  word  duty  and  to  assert 
positively  that  the  article  was  preeminently  to  the  advan- 
tage of  the  smaller  and  weaker  states.  But  Professor  Velj- 
kovitch,  of  Servia,  insisted  that  it  was  "a  kind  of  invitation 
for  the  larger  powers  to  initiate  measures  injurious  to 
the  justifiable  amour  propre  and  dignity  of  the  smaller 
states,  while  the  latter  would  never  be  permitted,  in  prac- 
tice, to  fulfill  the  duty  stated  by  the  article  in  regard  to  the 


ARBITRATION  307 

former.  The  surest  method  of  establishing  the  asserted 
equality,  he  said,  would  have  been  to  adopt  the  principle 
of  obligatory  arbitration.  This  caused  Professor  Zorn, 
of  Germany,  to  assert  that  although  there  was  undoubtedly 
in  the  committee  of  examination  a  powerful  current  in 
favor  of  obligatory  arbitration,  the  German  government 
would  not  have  been  in  a  position  to  adopt  it.  The 
reason  for  his  government's  objection  to  it  he  stated 
to  be  as  follows : 

"It  is  true  that  there  exists  quite  a  series  of  particular  cases  of  ar- 
bitration, and  that  arbitration  is  no  longer  a  thing  unknown.  But 
the  experiments  which  have  been  made  within  the  field  of  arbitration, 
up  to  the  present  time,  are  not  of  a  kind  sufficient  to  permit  my  gov- 
ernment to  agree  to  obligatory  arbitration  in  the  future.  To  proceed 
in  this  important  matter  without  sufficient  experience,  would  seem  to 
be  dangerous  and  might  lead  to  discord  rather  than  to  harmony.  .  .  . 
On  the  other  hand,  the  German  government  has  been  impressed  with 
the  belief,  held  in  common  by  all  the  governments  represented  here, 
that  every  endeavor  tending  to  preserve  peace  and  good  relations  be- 
tween nations  deserves  most  earnest  attention.  Hence  my  govern- 
ment has  made  no  objections,  up  to  the  present  moment,  to  Article 
27,  although,  perhaps,  the  expression  of  duty  would  appear  to  go  a 
little  too  far.  But  there  would  seem  to  be  no  insurmountable  difficul- 
ties to  this  moral  duty  being  expressed  and  emphasized.  .  .  .  The 
object  of  our  task  is  to  create  a  solid  basis  for  the  widest  possible  use 
of  peaceful  means  in  putting  an  end  to  international  differences." 

M.  Odier,  of  Switzerland,  appealed  to  his  colleagues 
from  the  other  smaller  states  to  accept  the  article  as  not 
only  advantageous  to  the  smaller  states,  but  also  as  a 
proper  recognition  of  the  attitude  of  neutrals  towards 
belligerents.  "We  have  sought,"  he  said,  "to  open  a 
new  era  in  international  relations.  Until  the  present  day, 
the  condition  of  war  has  been  left  to  the  decision  of  nations 


308  THE  TWO   HAGUE   CONFERENCES 

in  dispute,  and  neutral  powers  have  not  done  all  they  could 
to  prevent  it.  Now,  it  must  be  recognized  that  corre- 
sponding to  this  new  era  there  are  new  duties.  Neutrals 
have  these  duties  to  fulfill.  They  may  no  longer  content 
themselves  with  maintaining  a  more  or  less  disapproving 
silence ;  they  may  no  longer  permit  two  powers  to  appeal 
to  arms  without  putting  forth  their  best  efforts  to  prevent 
such  a  calamity.  One  of  our  colleagues  has  tried  to 
characterize  the  role  of  neutrals  in  such  a  contingency, 
and  he  has  invented  for  it  the  happy  word  'peace-manag- 
ing' (pacigerant).  This  characterization  will  be  conse- 
crated by  the  Conference  of  The  Hague.  That  is  why 
I  approve  heartily  of  the  proposition  presented  by  the 
French  delegation,  which  I  regard  as  the  consecration  of  a 
duty  of  neutral  states." 

Mr.  Holls,  of  the  United  States,  added  his  approval 
of  the  article  and  an  appeal  for  its  unanimous  adoption ; 
but  still  the  Servian  and  other  Balkan  delegates  were 
obdurate,  until  M.  Bourgeois,  president  of  the  commission, 
addressed  to  them  a  powerful  and  conciliatory  appeal. 
"Since  the  opening  of  this  conference,"  he  said,  "we  have 
more  than  once  succeeded  in  reaching  a  unanimous  agree- 
ment on  questions  which,  at  first,  seemed  to  divide  us. 
It  would  be  an  important  achievement,  and  one  whose 
moral  significance  is,  to  my  mind,  beyond  expression,  if 
on  this  Article  27,  which  is  one  of  the  essential  factors 
in  our  plan  of  arbitration,  we  could  succeed  in  giving  to 
the  world  the  spectacle  of  our  unanimity.  .  .  .  The 
disputes  indicated  by  Article  27  are  indeed  only  those 
which  imperil  peace;  it  is  indeed  for  them  alone  that  we 
consider  legitimate  a  friendly  summons  to  arbitration 
made  by  the  signatory  powers  to  powers  in  dispute.  .  .  . 


ARBITRATION 


309 


The  moral  utility  of  this  article  lies  wholly  in  the  fact  that 
by  it  the  common  duty  of  maintaining  peace  among  men 
is  recognized  and  affirmed  by  the  nations.  Think  you 
that  it  is  a  thing  of  small  importance  that  in  this  conference 
—  that  is  to  say,  not  in  a  gathering  of  theorists  and  phi- 
losophers, discussing  without  restrictions  and  on  their 
own  personal  responsibility,  but  in  an  assembly  where 
the  governments  of  nearly  all  the  civilized  nations  of  the 
earth  are  officially  represented  —  that  here,  the  existence 
of  this  international  duty  has  been  proclaimed,  and  that 
the  idea  of  this  duty,  implanted  from  this  time  forth  within 
the  consciences  of  the  peoples,  is  imposed  upon  the  future 
acts  of  governments  and  nations?  ...  I  will  repeat  the 
words  of  Count  Nigra :  '  There  are  here  neither  large  nor 
small  powers ;  all  are  equal  before  the  work  to  be  accom- 
plished.' But  if  this  work  should  prove  more  useful  to 
some  than  to  others,  is  it  not  to  the  weakest  that  it  will 
certainly  bring  more  benefit?  As  I  said  yesterday  to  our 
colleagues  of  the  minority  in  the  committee  of  examination  : 
Every  time  a  court  has  been  established  in  the  world, 
and  a  deliberate  and  impartial  decision  has  been  thereby 
enabled  to  rise  above  the  struggle  of  interests  and  pas- 
sions, is  it  not  one  more  guarantee  to  the  weak  against  the 
abuse  of  power?  Gentlemen,  it  will  be  the  same  between 
nations  as  it  is  now  between  men.  International  institu- 
tions like  this  will  be  the  guarantee  of  the  weak  against 
the  strong.  In  conflicts  of  brute  force,  where  soldiers  of 
muscle  and  steel  are  arrayed,  there  are  the  large  and  the 
small,  the  weak  and  the  strong;  when  into  the  two  scales 
of  the  balance  swords  are  thrown,  one  may  be  heavier  and 
the  other  lighter.  But  when  rights  are  weighed  in  them, 
inequality  ceases,  and  the  rights  of  the  smallest  and  the 


310  THE  TWO   HAGUE   CONFERENCES 

weakest  press  down  upon  the  scales  of  the  balance  with 
a  weight  as  great  as  do  those  of  the  largest  and  strongest. 
It  is  this  conviction  which  has  guided  our  work,  and  it  is 
of  the  weak,  above  all,  that  we  have  thought  in  pursuing  it. 
May  they  understand  our  thought  and  respond  to  our  hope 
by  allying  themselves  with  this  endeavor  to  bring  the 
future  of  Humanity  more  and  more  under  the  control 
of  Law!" 

In  the  prolonged  applause  which  followed  M.  Bour- 
geois's peroration,  the  objections  of  the  Balkan  delegates 
faded  away,  and  the  article  was  adopted  unanimously. 
It  was  this  article  in  particular,  however,  which  called 
forth  an  important  declaration  from  the  delegation  of  the 
United  States.  Mr.  Holls,  of  that  delegation,  had  sup- 
ported the  article  both  in  the  committee  and  in  the  com- 
mission, where  he  had  said  that  the  omission  of  Article  27 
would  have  been  fatal  to  the  convention,  for  without  this 
article  it  would  incur  the  probability  of  never  being  put 
into  practice  and  of  remaining  wholly  illusory ;  it  was 
necessary,  he  thought,  to  express  this  idea  of  the  moral 
duty  of  states.  "This  idea,  this  simple  word,"  he  con- 
tinued, "will  inaugurate  a  new  era,  in  which  the  peoples 
will  recognize  their  bonds  of  solidarity  and  the  imperious 
obligation  of  interesting  themselves  not  only  in  their  own 
peace,  but  in  that  of  their  neighbors.  On  the  other  hand, 
this  article  does  not  imply  an  obligation  in  the  juristic 
sense  of  the  word,  but  an  obligation  of  a  moral  kind.  .  .  . 
As  for  me,  I  rejoice  that  such  an  idea  has  been  formulated, 
for  I  consider  it  the  crown  of  our  whole  work." 

But  the  American  delegation's  cordial  support  of  this 
article,  and  of  the  convention  as  a  whole,  did  not  cause 
them    to    lose    sight    of    the    traditional    policy    of    the 


ARBITRATION 


311 


United  States  which  is  expressed  in  the  Monroe  Doctrine 
and  its  later  developments.  Accordingly,  when  the  con- 
vention on  arbitration  was  adopted  in  plenary  session  of 
the  conference,  the  delegation  presented  the  following 
declaration : 

"Nothing  contained  in  this  Convention  shall  be  so  construed  as 
to  require  the  United  States  of  America  to  depart  from  its  traditional 
policy  of  not  entering  upon,  interfering  with,  or  entangling  itself  in  the 
political  questions  or  internal  administration  of  any  foreign  state,  nor 
shall  anything  contained  in  the  said  Convention  be  so  construed  as 
to  require  the  relinquishment,  by  the  United  States  of  America,  of  its 
traditional  attitude  toward  purely  American  questions." 


b.    The  Conference  of  igoy 

The  subject  of  obligatory  arbitration  was  brought 
before  the  Conference  of  1907  in  the  introductory  address 
of  M.  Bourgeois,  of  France,  president  of  the  I  Commission. 
He  referred  to  the  long  discussion  of  the  subject  in  1899; 
to  the  treaties  between  Denmark  and  Italy,  Denmark 
and  Holland,  and  Chili  and  Argentina,  providing  for 
obligatory  arbitration  without  restriction ;  to  the  nu- 
merous treaties  between  various  powers  providing  for 
the  obligatory  arbitration  of  certain  classes  of  cases; 
and  to  the  prophecy  of  Professor  Zorn,  of  Germany,  in 
1899,  that  the  opportune  moment  would  arrive  when, 
after  experiments  between  pairs  of  states,  there  could  be 
enumerated  cases  of  arbitration  obligatory  for  all.  In 
conclusion,  he  asked  if  that  opportune  moment  had  now 
arrived,  and  if  it  would  not  be  of  considerable  moral  sig- 
nificance to  consolidate  by  a  general  agreement  the  treaties 
already  concluded  separately  between  various  nations  and 


312  THE   TWO   HAGUE   CONFERENCES 

to  consecrate  by  a  common  signature  the  agreements  already 
signed  by  most  of  the  governments  in  pairs. 

The  question  was  then  referred  to  the  first  subcom- 
mission,  which  devoted  five  of  its  sessions  to  a  general 
discussion  of  it.  In  the  course  of  this  discussion,  the  rep- 
resentatives of  seventeen  powers  expressed  their  govern- 
ments' attitude  towards  a  general  treaty  of  obligatory 
arbitration.  Thirteen  of  these  were  "smaller  powers,"  and 
every  one  of  them  advocated  a  general  treaty  for  the  obli- 
gatory arbitration  of  certain  classes  of  cases ;  four  of  them 
were  "large  powers,"  and  two  of  these  favored  a  general 
treaty  for  the  obligatory  arbitration  of  certain  classes  of 
cases,  one  favored  such  a  treaty  "in  theory,"  but  re- 
served its  decision  on  the  treaty  actually  proposed,  and 
the  fourth  opposed  a  general  treaty  while  advocating 
heartily  the  making  of  obligatory  arbitration  treaties 
between  separate  states. 

Baron  Marschall  von  Bieberstein,  of  Germany,  was  the 
spokesman  of  this  last-named  power,  and  his  speech  was 
noteworthy  for  several  reasons.  It  was  the  first  and  only 
one,  in  the  preliminary  discussion,  which  frankly  opposed 
a  general  treaty  of  obligatory  arbitration  even  for  a  very 
restricted  number  of  cases;  and  yet  its  opposition  was 
based  on  an  advocacy  of  the  extension  of  obligatory 
arbitration  itself. 

"At  the  first  Peace  Conference,"  said  the  Baron,  "the  German 
delegate  declared  in  the  name  of  his  government  that  experience  in 
the  field  of  arbitration  was  not  of  a  kind  to  permit  an  agreement  at 
that  time  in  favor  of  obligatory  arbitration.  Eight  years  have  passed 
since  that  declaration,  and  experience  in  the  field  of  arbitration  has 
accumulated  to  a  considerable  extent.  The  question  has  been,  on 
the  other  hand,  the  subject  of  profound  and  continuous  study  on  the 


ARBITRATION  313 

part  of  the  German  government.  In  view  of  the  fruits  of  this  ex- 
amination, and  under  the  influence  of  the  fortunate  results  flowing 
from  arbitration,  my  government  is  favorable  to-day,  in  principle, 
to  the  idea  of  obligatory  arbitration.  It  has  confirmed  the  sincerity 
of  this  opinion  by  signing  two  treaties  of  permanent  arbitration,  one 
with  the  British  government,  the  other  with  that  of  the  United  States 
of  America,  both  of  which  include  all  judicial  questions  or  those 
relative  to  the  interpretation  of  treaties.  We  have,  besides,  inserted 
in  our  commercial  treaties  concluded  within  recent  years  an  arbitra- 
tional  agreement  for  a  series  of  questions,  and  we  have  the  firm  inten- 
tion of  continuing  to  pursue  the  task  in  which  we  are  engaged  in 
concluding  these  treaties. 

"In  the  course  of  our  debates,  the  fortunate  fact  has  been  men- 
tioned that  a  long  series  of  other  treaties  of  obligatory  arbitration 
have  been  concluded  between  various  states.  This  is  genuine  prog- 
ress, and  the  credit  of  it  is  due,  incontestably,  to  the  first  Peace 
Conference. 

"It  would  be  an  error,  however,  to  believe  that  a  general  arbitra- 
tional  agreement  concluded  between  two  states  can  serve  purely  and 
simply  as  a  model  or,  so  to  speak,  a  formulary  for  a  world  treaty. 
The  matter  is  very  different  in  the  two  cases.  Between  two  states 
which  conclude  a  treaty  of  general  obligatory  arbitration,  the  field 
of  possible  differences  is  more  or  less  under  the  eyes  of  the  treaty 
makers ;  it  is  circumscribed  by  a  series  of  concrete  and  familiar  factors, 
such  as  the  geographical  situation  of  the  two  countries,  their  financial 
and  economic  relations,  and  the  historic  traditions  which  have  grown 
up  between  them.  In  a  treaty  including  all  the  countries  of  the  world, 
these  concrete  factors  are  wanting,  and  hence,  even  in  the  restricted 
list  of  juristic  questions,  the  possibility  of  differences  of  every  kind  is 
illimitable.  It  follows  from  this  that  a  general  arbitrational  agree- 
ment which,  between  two  states,  defines  with  sufficient  clearness  the 
rights  and  duties  which  flow  from  it,  might  be  in  a  world  treaty  too 
vague  and  elastic,  and  hence  inapplicable. 

"Now,  if  we  raise  before  the  world  the  flag  of  obligatory  arbitra- 
tion, we  must  surely  have  an  arbitrational  agreement  which  would  do 
honor  to  this  flag  and  define  clearly  and  precisely  the  character  of  the 
obligation.  Without  that  we  should  expose  ourselves  to  the  reproach 
of  making  promises  which  can  not  be  kept  and  of  offering  a  formula 


314  THE  TWO   HAGUE   CONFERENCES 

instead  of  a  fact.  Further,  there  would  be  danger  that  instead  of 
smoothing  away  a  difficulty,  there  would  be  added  to  it  an  additional 
quarrel  as  to  the  interpretation  and  application  of  the  treaty  itself.  .  .  . 
As  to  universal  obligatory  arbitration,  it  is  not  sufficient  for  its  suc- 
cessful application  to  assert  the  principle ;  it  is  necessary  to  arrange 
practical  details.  To  use  a  metaphor:  it  is  not  sufficient  to  build  a 
cosmopolitan  dwelling,  with  a  fine  facade ;  it  is  necessary  to  furnish 
it  in  such  a  manner  that  the  nations  of  the  earth  may  live  in  it  com- 
fortably and  on  good  understanding." 

Austria's  representative,  M.  de  Mercy,  stated  his  gov- 
ernment's belief  in  the  principle  of  the  obligatory  arbi- 
tration of  certain  classes  of  difficulties,  even  under  a 
general  treaty,  but  said  that  he  would  reserve  his  decision 
until  he  knew  precisely  what  classes  would  be  included 
within  the  treaty  proposed. 

Sir  Edward  Fry,  of  Great  Britain,  alluded  to  the  various 
treaties  of  general  arbitration  which  his  government  had 
made,  and  stated  its  belief  that  the  time  had  come  to  take 
one  step  farther  in  the  path  which  leads  to  the  conclusion 
of  a  general  agreement  for  the  settlement  by  means  of 
arbitration  of  every  question  admitting  of  such  a  solution. 

"I  foresee,"  he  continued,  "that  we  shall  be  told  that  any  agree- 
ment which  we  may  be  able  to  reach  can  have  only  an  insignificant 
result,  since  the  legal  bond  (vinculum  juris)  which  it  will  create,  will 
be,  from  the  juristic  point  of  view,  feeble  and  indefinite.  But  nations 
are  not  governed  solely  by  juristic  conceptions,  nor  united  with  each 
other  only  by  legal  bonds.  For  my  part,  I  believe  that  the  treaty 
which  we  are  considering  will  have  a  great  importance  in  history  as 
being  the  collective  expression  of  the  conscience  of  the  civilized 
world." 

Ambassador  Choate,  of  the  United  States,  was  the  first 
representative  of  the  larger  powers  to  speak,  and  his  speech 
was  a  powerful  argument  and  appeal  for  a  general  treaty 


ARBITRATION 


315 


providing  for  the  obligatory  arbitration  of  certain  classes 
of  disputes.  After  alluding  to  the  work  of  the  first 
conference,  and  to  the  court  of  arbitration  established 
by  it  as  "one  of  the  greatest  advances  that  have  yet  been 
made  in  the  cause  of  civilization  and  peace,"  Mr.  Choate 
continued : 

"But,  Mr.  President,  great  events  have  happened  since  the  close 
of  the  first  Peace  Conference  which  have  attracted  the  attention  of 
the  world  and  convinced  it  of  the  necessity  of  taking  another  long  step 
forward  and  of  making  arbitration  as  far  as  human  ingenuity  can  do 
it  a  substitute  for  war  in  all  possible  cases.  Two  terrible  wars  have 
taken  place,  each  productive  of  an  incalculable-  amount  of  human 
suffering  and  misery,  and  these  wars  have  been  followed  by  a  steady 
increase  of  armaments,  which  offer  a  convincing  proof  that  the  evils 
and  mischiefs  which  the  Russian  Emperor  and  Count  Mouravieff 
deplored  [in  1898]  are  still  threatening  the  peoples  of  all  the  countries, 
and  that  arbitration  is  the  only  loophole  of  escape  from  all  those  evils 
and  mischiefs.  So  thoroughly  have  all  the  nations,  great  and  small, 
been  convinced  of  this  proposition  that  many  of  them  have  made 
haste  to  interchange  with  other  individual  nations  agreements  to  settle 
the  very  questions  for  which  arbitration  was  recognized  by  the  last 
conference  as  the  most  efficacious  and  equitable  remedy,  by  that  peace- 
ful method  instead  of  by  a  resort  to  war.  I  believe  that  some  thirty 
treaties  have  been  thus  exchanged  among  the  nations  of  Europe  alone, 
all  substantially  to  the  same  purport  and  effect. 

"In  1904  the  United  States  of  America,  beholding  from  a  distance 
the  disastrous  effects  of  those  terrible  conflicts  of  arms  from  which 
they  were  happily  removed,  proposed  to  ten  of  the  leading  nations  to 
interchange  treaties  with  them  of  the  same  nature  and  effect.  Their 
proposition  was  most  cordially  welcomed  and  ten  treaties  were  ac- 
cordingly negotiated  and  exchanged,  but  failed  of  ratification  by 
an  internal  domestic  question  which  arose  between  the  different 
branches  of  the  treaty-making  powers  of  the  United  States.  But 
all  parties  were  of  one  mind  that  all  the  questions  for  which  arbitra- 
tion had  been  recommended  by  the  former  conference  should  be 
settled  by  that  method  rather  than  by  resort  to  arms,  and  that  The 


316  THE   TWO   HAGUE   CONFERENCES 

Hague  Court  should  be  the  tribunal  to  which  they  should  be  sub- 
mitted. 

"In  1 901,  at  the  Second  International  Conference  of  the  American 
States  held  in  Mexico,  to  which  the  United  States  was  a  party,  an 
obligatory  convention  was  entered  into  and  signed  by  all  the  parties 
taking  part  in  the  conference,  by  which  they  agreed  to  submit  to 
arbitration  all  claims  for  pecuniary  loss  or  damage  which  may  be 
presented  by  their  respective  citizens  and  which  can  not  be  amicably 
adjusted  through  diplomatic  channels,  when  said  claims  are  of  suffi- 
cient importance  to  warrant  the  expenses  of  arbitration,  and  that  The 
Hague  Tribunal  should  be  the  court  for  the  trial  and  disposition  of 
all  such  controversies  unless  otherwise  specially  agreed.  And  in 
case,  for  any  cause  whatever,  the  Permanent  Court  of  The  Hague 
should  not  be  open  to  one  or  more  of  the  high  contracting  parties, 
they  obligated  themselves  to  stipulate  in  a  special  treaty  the  rules 
under  which  the  tribunal  shall  be  established  for  taking  cognizance 
of  the  questions  to  be  submitted.  This  convention  was  for  five  years 
and  was  ratified  by  eight  of  the  parties,  including  the  United  States  of 
America. 

"Later  still,  at  the  Third  International  Conference  of  the  Ameri- 
can States  held  at  Rio  in  1906,  for  the  holding  of  which  this  meeting 
of  the  second  Conference  at  The  Hague  was  by  the  courtesy  of  the 
signatory  parties  postponed  until  the  present  year,  the  Mexican  treaty 
was  renewed  for  a  further  period  of  five  years  by  all  the  parties  that 
had  ratified  it  and  by  all  the  other  countries  in  the  conference,  and 
is  now  being  ratified  by  them  one  after  the  other. 

"At  the  Rio  conference  the  subject  of  a  still  further  extension  of 
obligatory  arbitration  was  again  considered,  and  at  that  time  all  the 
parties  to  that  conference  had  been  invited  to  take  part  in  this  second 
Conference  at  The  Hague.  And  in  view  of  that  fact,  and  of  a  general 
desire  on  their  part  to  defer  to  the  judgment  of  this  present  conference, 
the  committee  to  whom  the  matter  was  referred,  reported  a  resolution 
to  ratify  adherence  to  the  principles  of  arbitration  and,  to  the  end  that 
so  high  a  purpose  may  be  rendered  practicable,  to  recommend  to  the 
nations  represented  that  instructions  be  given  their  delegates  to  the 
second  conference  to  be  held  at  The  Hague  to  endeavor  to  secure  by 
the  said  assemblage  of  world-wide  character  the  negotiation  of  a 
general  arbitration  convention  so  effective  and  definite  that,  meriting 


ARBITRATION  317 

the  approval  of  the  civilized  world,  it  shall  be  accepted  and  put  in 
force  by  every  nation.  The  conference  unanimously  ratified  the 
report  of  the  committee,  and  the  United  States  was  a  party  to  the 
ratification. 

"It  is  under  these  circumstances  that  the  delegation  of  the  United 
States  of  America  comes  here  instructed  by  its  government  to  ad- 
vocate the  adoption  of  a  general  treaty  of  arbitration  substantially 
of  the  tenor  and  effect  of  the  treaties  which  it  entered  into  in  1904, 
to  which  I  have  already  referred  and  which  became  abortive  by  the 
circumstances  already  mentioned. 

"...  There  seems  to  be  no  intelligent  reason  why  nations,  hav- 
ing at  stake  grave  interests  from  which  may  arise  possible  differ- 
ences with  other  nations,  and  who  have  already  separately  agreed  to 
submit  such  differences  to  arbitration  before  The  Hague  Tribunal, 
should  not  all  together  agree  to  exactly  the  same  thing,  and  why  other 
nations  should  not  follow  them  in  the  paths  of  peace  so  happily  in- 
augurated. .  .  .  We  believe  that  it  [the  American  plan]  will  satisfy 
a  world-wide  demand  for  such  a  general  treaty,  and  will  go  far  to  pro- 
mote the  cause  of  arbitration  which  all  the  nations  are  every  year 
expecting  more  and  more  confidently  as  a  substitute  for  the  terrible 
arbitrament  of  war." 

This  address  of  Ambassador  Choate,  excellent  in  itself 
and  coming  after  the  representatives  of  eight  of  the  smaller 
powers  had  advocated  obligatory  arbitration  of  a  more 
or  less  restricted  kind,  and  before  any  of  the  larger  powers 
had  expressed  themselves  upon  it,  made  a  great  and  favor- 
able impression.  Among  the  noteworthy  addresses  made 
by  representatives  of  the  smaller  powers  may  be  mentioned 
those  of  the  Marquis  de  Soveral,  of  Portugal,  M.  Milo- 
vanovitch,  of  Servia,  M.  Castro,  of  Uruguay,  and  Samad 
Khan,  of  Persia.  Marquis  de  Soveral  asserted  his  belief 
that  the  "opportune  moment"  had  arrived  for  conse- 
crating at  The  Hague  a  state  of  things  which  since  1899 
has  more  and  more  distinguished  international  relations. 
"The  simple  fact  of  the  convocation  of  this  conference  by 


318  THE  TWO   HAGUE   CONFERENCES 

our  governments,"  he  said,  "means  that  they  believe  that 
the  moment  has  arrived  for  giving  a  new  impulse  to  the 
cause  of  peace.  We  bear  this  responsibility  before  the 
world;  I  am  sure,  gentlemen,  that  we  shall  honor  it." 
"Without  lulling  ourselves  by  ,the  illusive  belief  that 
in  the  present  state  of  mankind,"  said  M.  Milovanovitch, 
"  it  would  be  possible  either  to  abolish  all  the  causes 
of  warfare  or  even  to  foresee  and  provide  for  the  causes  of 
future  wars,  nothing  prevents  us  from  defining  the  causes 
which  can  and  ought  to  be  submitted  to  a  peaceful  solu- 
tion. This  will  undoubtedly  aid  in  making  wars  less 
frequent;  and  it  will  develop  the  sentiment  of  justice 
in  dealings  between  nations  and  inspire  a  greater  trust 
in  the  principles  and  rules  of  international  law.  Then 
only,  when  differences  arise,  will  the  states,  the  small 
states  above  all,  be  able  to  say:  'There  are  judges  at  The 
Hague!'"  M.  Castro  referred  to  cynics,  outside  of  the 
conference,  who  would  probably  remark  that,  with  one  or 
two  praiseworthy  exceptions,  the  partisans  of  obligatory 
arbitration  are  found  only  among  the  small  states,  whence 
they  would  conclude  that  the  tendency  of  these  same  states 
would  be  quite  the  reverse  if  might  were  on  their  side. 
"Perhaps  so,"  he  continued,  "since  it  accords  with  the 
imperfections  of  human  nature,  —  which  we  are  sum- 
moned to  aid  in  correcting;  but  what  can  not  be  doubted 
is  that  the  presumptio  juris  of  seeking  the  rule  of  justice  is 
an  aid  to  the  least  strong,  since  in  their  conflicts  with  the 
powerful  they  can  count  only  on  right  and  justice." 
Samad  Khan,  in  the  flowery  language  of  the  Orient,  said 
that  "the  new  treaty  of  international  arbitration  should 
be  the  loveliest  wreath  of  flowers  which,  in  leaving  this 
hospitable  land,  we  can  offer  to  the  nations  who  have 


ARBITRATION 


319 


sent  us  here.  .  .  .  Though  we  may  not  attain  this  time 
our  sacred  goal  [of  assuring  general  peace],  we  should  at 
least  strive  ardently  for  it  and  desire  it  with  all  our  heart : 
Seek,  and  thou  shalt  find !  .  .  .  The  day  must  come 
when  we  can  exclude  from  our  vocabularies  the  historic 
motto  :   If  you  desire  peace,  prepare  for  war." 

At  the  end  of  the  long  general  discussion,  the  many  prop- 
ositions concerning  arbitration  were  referred  to  a  committee 
of  examination.  The  committee  examined  them  one  by 
one,  commencing  with  that  which  gave  the  largest  scope 
to  obligatory  arbitration  and  ending  with  that  which 
was  most  restrictive. 

The  Dominican  Republic  was  the  only  state  which  actu- 
ally proposed  universal  obligatory  arbitration  "without 
restriction,"  although  Denmark  "called  the  attention"  of 
the  conference  to  its  three  treaties,  made  with  the  Nether- 
lands, Italy,  and  Portugal,  which  provide  for  obligatory 
arbitration  without  reserve.  The  Dominican  delegation 
based  its  proposition  on  the  desire  for  arbitration  expressed 
by  the  representatives  of  nineteen  American  powers  at 
the  Conference  of  Rio  Janeiro.  But  the  committee  de- 
cided unanimously  that  it  was  useless  to  discuss  a  proposi- 
tion which  was  certain  to  be  rejected  by  the  conference. 

The  proposition  which  appeared  to  be  of  widest  scope 
next  to  the  Dominican  was  Brazil's,  which  provided 
for  the  arbitration  of  all  questions  which  can  not  be 
settled  by  diplomacy,  good  offices,  or  mediation,  except 
those  which  affect  independence,  territorial  integrity, 
essential  interests,  domestic  laws  or  institutions,  or  the 
interests  of  third  parties.  M.  Ruy  Barbosa,  of  Brazil, 
defended  all  of  these  exceptions  as  necessary  or  desirable ; 
but  they  were  objected  to  by  several  delegates  for  the  reason 


320  THE   TWO   HAGUE   CONFERENCES 

that,  since  in  accordance  with  the  proposition  they  were 
to  be  interpreted  solely  by  the  parties  to  the  disputes,  they 
would  leave  absolutely  nothing  of  obligatory  arbitration 
except  the  name.  Professor  de  Martens,  of  Russia,  op- 
posed the  proposition  for  the  reason  that  it  would  have 
excluded  the  majority  of  the  questions  which  were  the 
object  of  fifty-five  arbitral  awards  during  the  Nineteenth 
Century.  Dr.  Drago,  of  Argentina,  remarked  that  it 
would  be  more  practical  to  enumerate  the  cases  of  obli- 
gatory arbitration  possible  or  desirable,  instead  of  making 
vague  and  sweeping  exceptions  to  a  general  rule ;  and  the 
committee  accepted  this  view  of  the  matter  and  turned  to 
a  consideration  of  propositions  suggesting  specific  classes 
of  cases. 

The  preamble  and  articles  of  1899  which  had  to  do 
with  arbitration  and  obligatory  arbitration  in  general 
were  all  retained,  in  1907,  in  their  form  as  first  adopted, 
with  only  one  important  modification.  This  modifica- 
tion was  an  addition  to  Article  27,  and  was  proposed  by 
M.  Candamo,  of  Peru,  in  the  following  words : 

"Article  27  declares  that  the  signatory  powers  consider  it  their  duty 
to  remind  parties  in  dispute  that  the  Permanent  Court  is  open  to  them. 
This  article  provides  a  means  of  setting  arbitration  in  motion.  It 
was  one  of  the  successes  of  the  first  conference,  and  it  marked  the 
triumph  of  a  great  juristic  idea.  But  why  can  we  not  take  one  step 
farther  ?  Why  should  one  of  the  parties  in  dispute  wait  to  be  reminded 
that  the  affair  could  be  submitted  to  arbitration?  And  if  it  be  dis- 
posed to  have  recourse  of  itself  to  this  means  of  peaceful  solution, 
why  should  it  not  voluntarily  come  before  the  organization  in  The 
Hague  which  represents  the  signatory  powers? 

"Although  it  is  often  difficult  for  one  power  to  make  towards 
another  one  with  whom  it  is  in  dispute  an  advance  which  might  be 
considered  an  act  of  weakness,  or  as  indicating  a  lack  of  confidence  in 


ARBITRATION  32 1 

its  own  good  cause,  it  would  not  be  the  same  with  a  declaration  made 
before  the  bureau  officially  charged  by  the  powers  to  secure  the  func- 
tioning of  the  Permanent  Court's  and  all  other  arbitral  jurisdiction. 
Such  a  declaration  would  imply  neither  weakness  nor  condescension ; 
on  the  contrary,  it  would  constitute  an  assurance,  on  the  part  of 
the  power  from  whom  it  emanated,  of  the  good  basis  of  its  contention. 
"The  International  Bureau  of  The  Hague  would  in  this  way  be 
made  more  active  and  more  efficacious.  Though  it  would  not  be 
charged,  as  M.  Bourgeois  and  the  Baron  d'Estournelles  desired  in 
1899,  with  taking  the  initiative,  it  would  at  least  act  in  pursuance  of 
the  declaration  received,  and  would  bring  it  to  the  attention  of  the 
adverse  party.  This  would  be  another  means  of  serving  as  a  medium 
between  the  two  parties  and  of  aiding  in  their  reconciliation,  —  to  the 
great  advantage  of  the  cause  of  international  peace  and  justice." 

When  the  Peruvian  proposition  came  up  for  considera- 
tion at  a  subsequent  meeting  of  the  subcommission,  M. 
Candamo  advocated  it  in  another  address,  in  which  he 
pointed  out  the  fact  that  the  large  number  of  disputes 
affecting  essential  interests,  independence,  or  honor,  and 
not  being  subject  to  obligatory  arbitration,  might  be 
settled  by  voluntary  arbitration  if  the  latter  could  be 
promoted  in  the  way  proposed. 

"There  is  absolutely  no  reason,"  he  said,  "why  differences,  how- 
ever great  they  may  be,  may  not  find  their  settlement  in  arbitration ; 
and  it  would  be  in  contradiction  to  the  very  object  of  this  conference 
to  appear  to  admit  that  there  may  be  cases  where  arbitration  would  be 
inadmissible.  It  is  proper  to  extend,  as  far  as  it  can  be  done,  the 
means  of  facilitating  the  spontaneous  and  voluntary  recourse  to  arbi- 
tration, to  stimulate  and  encourage  pacific  regulations.  Arbitration 
must  always  be  possible;  arbitration  should  always  take  the  place 
of  war." 

M.  Gana,  of  Chili,  cordially  supported  the  Peruvian 
proposition,  with  the  amendments,  first,  that  no  account  of 
the  dispute  and  its  causes  should  be  given  to  the  Inter- 


322  THE   TWO   HAGUE   CONFERENCES 

national  Bureau,  but  that  the  latter  should  act  merely 
as  an  agent  for  transmitting  the  offer  and  the  response, 
and  for  informing  all  the  signatory  powers  of  the  offer, 
so  that  they  might  perform  the  duty  stated  in  the  article; 
and,  further,  that  the  new  rule  should  apply  only  to  dif- 
ferences arising  after  the  date  of  its  adoption. 

Baron  d'Estournelles,  of  France,  after  referring  to  the 
history  of  Article  27  in  1899,  said: 

"Unfortunately,  this  rule  has  hitherto  remained  almost  a  dead 
letter.  The  propositions  before  us  may  permit  us  to  perfect  it  by  sup- 
plying the  parties  themselves  with  the  means  of  appealing  to  arbitra- 
tion, without  being  stopped  by  the  point  of  honor,  and  by  inviting 
them,  so  to  speak,  in  advance,  to  address  themselves,  when  occasion 
arises,  to  the  International  Bureau  of  The  Hague.  A  simple  decla- 
ration will  suffice  to  show  that  one  of  the  parties,  having  confidence  in 
its  good  cause,  is  ready  to  submit  to  justice.  This  declaration,  being 
no  more  than  purely  and  simply  the  execution  of  a  treaty,  will  require 
not  the  least  sacrifice  of  amour  propre;  public  opinion  can  not  consider 
it  an  inadmissible  humiliation." 

Ambassador  Choate  also  warmly  advocated  Peru's 
proposition,  with  Chili's  amendments,  saying  that  while 
he  agreed  with  Baron  d'Estournelles  that  the  rule  of  1899 
had  not  rendered  the  important  services  which  were  right- 
fully expected  of  it,  its  efficacy  and  its  very  considerable 
importance  had  been  put  to  the  proof  in  America. 

"No  one,  doubtless,  has- forgotten  how  a  happy  application  of  its 
principle  has  succeeded  several  times  in  preventing  wars  which 
threatened  to  break  out  between  several  South  American  states,  or  in 
shortening  such  wars.  The  opportunity  afforded  by  this  article  to 
third  parties  has  a  great  importance;  but  the  proposed  addition  to  it 
is  perhaps  still  more  important.  It  offers,  in  effect,  to  the  parties  in 
dispute  themselves  an  easy  means  —  the  only  practicable  one,  per- 
haps —  of  having  recourse  to  arbitration,  at  very  embarrassing  times. 
We  know  how  difficult,  and  sometimes  how  dangerous,  it  is  for  a 


ARBITRATION  323 

government  when  it  is  forced  more  or  less  in  spite  of  itself  into  the 
clash  of  arms,  to  make  concessions,  in  the  face  of  public  opinion,  even 
though  only  seeming  concessions,  to  its  adversary;  and  we  know  how 
prudently  it  must  take  the  initiative  in  a  recourse  to  arbitration  which 
is  often  very  ill  received.  At  such  times  hesitation  may  prove  fatal 
and  everything  be  lost.  But  according  to  the  very  simple  system  which 
has  just  been  explained  the  task  will  be  notably  facilitated.  The  sys- 
tem proposed  by  Peru  and  Chili  opens  a  new  door  to  conciliation ; 
it  means  a  decided  progress,  and  is  indeed  a  great  benefit  to  mankind. 
The  United  States  delegation  gives  its  warm  and  hearty  support  to 
the  authors  of  the  proposition." 

Sir  Edward  Fry,  Professor  de  Martens,  and  M.  Ruy 
Barbosa  also  supported  the  proposition,  and  it  was  referred 
to  the  committee  of  examination  for  report  to  the  com- 
mission. 

The  committee  reported,  by  a  vote  of  thirteen  to  four, 
with  two  abstentions,1  an  addition  to  Article  27,  as  follows : 
"In  case  of  dispute  between  two  powers,  one  of  them  may 
always  address  to  the  International  Bureau  at  The  Hague 
a  note  containing  its  declaration  that  it  will  be  disposed 
to  submit  the  difference  to  arbitration.  The  International 
Bureau  will  immediately  bring  the  declaration  to  the  knowl- 
edge of  the  other  power."  M.  Candamo  objected  to  the 
Chilian  amendment  applying  the  rule  only  to  disputes 
arising  after  its  adoption,  and  the  committee  rejected 
the  amendment,  but  for  the  reason  that  it  was  unneces- 
sary, since  the  arbitration  would  be  entirely  voluntary, 
and  also  for  the  reason  that  no  convention  can  have 
retroactive  effect,  unless  expressly  so  stipulated.  On  this 
last  ground,  the  Chilian  delegation  expressed  its  adherence 
to  the  article  as  reported  to  the  commission. 

1  Germany,  Austria,  Belgium,  and  Sweden  voted  against  it;    Greece  and 

Switzerland  abstained. 


324  THE  TWO   HAGUE   CONFERENCES 

But  M.  Tsudzuki,  of  Japan,  opposed  the  addition  to 
the  article  for  the  reason  that  "the  intervention  of  a  third 
power  in  a  dispute  between  two  states  is  not  at  all  cal- 
culated to  lessen  the  tension  of  their  relations."  M. 
von  Merey  also  opposed  it,  with  the  statement:  "In  1899 
the  delegation  of  Austria-Hungary  accepted  Article  27 
without  conviction.  It  never  surrendered  itself  to  the 
optimism  of  some  other  delegations  in  regard  to  this 
article.  I  assert  that  in  the  eight  years  which  have  passed 
since  the  conclusion  of  the  convention  of  1899  this  article 
has  never  been  put  into  practice.  We  all  know  that 
occasions  for  it  have  not  been  lacking.  There  have  been 
controversies,  differences,  and  even  great  wars  between 
states,  and  never,  a  single  time,  has  the  article  been 
applied.  The  reason  is  very  simple.  Every  power  thinks 
twice  before  putting  its  finger  between  the  anvil  and  the 
hammer.  Now,  if  I  am  consoled  for  the  existence  of  this 
article  by  the  fact  that  it  has  not  been  applied,  I  find  it 
none  the  less  inopportune  to  develop  it  by  adding  the 
Peruvian  amendment.  The  latter  seems  to  me,  moreover, 
sufficiently  serious  and  dangerous,  for  it  would  create 
for  one  or  other  of  the  parties  in  dispute  a  temptation  to 
grant  [sic:  octroyer]  to  the  other  recourse  to  arbitration." 
M.  von  Merey  then  asserted  that  the  simpler  and  better 
way  of  securing  arbitration  would  be  by  the  usual  diplo- 
matic negotiations,  and  concluded  by  saying: 

"For  one  of  the  powers  to  choose  a  means  so  far-fetched  as  the 
agency  of  the  International  Bureau  at  The  Hague  would  be,  in  my 
opinion,  to  put  a  pistol  to  the  breast  of  the  other  and  coerce  it.  I  be- 
lieve that  such  a  manner  of  proceeding  would  not  aid  in  improving 
the  relations  between  states,  nor  render  recourse  to  arbitration  more 
desired  or  more  frequent." 


ARBITRATION  325 

Baron  d'Estournelles  replied  immediately  to  M.  von 
Merey  as  follows:  "Permit  me,  my  dear  colleague,  to 
respond  with  a  few  words  in  the  name  of  those  who  pro- 
posed Article  27  eight  years  ago.  I  am  one  of  those  who 
advocate  it  in  its  new  form,  but  without  deluding  myself 
in  the  way  suggested  by  M.  von  Merey.  I  never  expected 
a  miracle  of  it,  above  all  in  so  short  a  time.  What  my 
colleagues  of  Peru  and  Chili  have  desired  is  that  our  labors 
shall  not  result  solely  in  a  convention  on  paper,  but  that 
this  convention  shall  become  a  reality.  After  having 
made  it  a  duty  to  remind  states  in  dispute  that  the  court 
at  The  Hague  is  open  to  them,  it  is  desired  to  give  to  the 
latter  a  practical  means  of  having  recourse  to  it.  M. 
von  Merey  has  very  justly  remarked  that  up  to  the  present 
'not  a  single  power  has  ventured  between  the  anvil  and 
hammer.'  Precisely,  we  wished  to  do  away  with  the 
anvil  and  hammer!"  After  pointing  out  the  superiority 
of  the  proposed  plan  to  the  usual  diplomatic  negotiations 
in  periods  of  tension,  Baron  d'Estournelles  concluded  by 
saying:  "Instead  of  obliging  the  parties  in  dispute  to 
extend  each  other  their  hands,  which  is  very  difficult,  we 
say  to  them :  '  Simply  address  yourself  to  the  neutral 
Bureau  at  The  Hague,  which  is  .  .  .  the  international 
letter  box.'  It  is  in  this  view  of  the  question  that  none 
of  us  —  if  he  really  desires  the  progress  of  arbitration  - 
can  refuse  to  vote  the  proposition  of  Peru."  This  reply 
was  greeted  with  much  applause,  and  the  commission 
adopted  the  article  as  proposed,  by  a  vote  of  thirty-four  to 
seven,  with  three  abstentions.1 

In  the  plenary  session  of  the  conference,  this  article  was 

1  The  negative  vote  was  cast  by  Germany,  Austria,  Belgium,  Japan,  Rou- 
mania,  Sweden,  and  Turkey;  Greece,  Luxemburg,  and  Montenegro  abstained. 


326  THE   TWO   HAGUE   CONFERENCES 

adopted  without  dissenting  voice,  except  for  those  of 
Japan  and  Turkey.  Dr.  Hill,  of  the  United  States,  made 
the  same  declaration  in  regard  to  it  as  had  been  made  by 
the  United  States  delegation  in  1899.1 


2.   Specific  Cases 
a.    The  Conference  of  i8gg 

The  proposals  in  regard  to  arbitration  submitted  to 
the  conference  by  the  Russian  delegation  included  five 
articles  dealing  with  the  obligatory  arbitration  of  certain 
specified  classes  of  cases.  These  articles  were  accom- 
panied by  an  explanatory  note,  in  which  it  was  stated  that 
"the  recognition  of  obligatory  arbitration,  were  it  only 
within  the  narrowest  limits,  would  assert  the  principles 
of  law  in  international  relations  and  would  guarantee 
them  against  infractions  and  attacks ;  it  would  neutralize, 
as  it  were,  vast  domains  of  international  law.  Obliga- 
tory arbitration  would  be  a  convenient  means  of  eliminat- 
ing the  misunderstandings  between  states  which  are  so 
numerous  and  so  troublesome,  even  though  not  very 
serious,  and  which  sometimes  embarrass  most  unneces- 
sarily diplomatic  relations.  Thanks  to  obligatory  arbi- 
tration, states  could  more  readily  enforce  their  legitimate 
claims,  and,  what  is  still  more  important,  free  themselves 
from  unjustifiable  demands. 

"Obligatory  arbitration  would  serve  the  cause  of 
universal  peace  to  an  incalculable  extent.  Of  course,  the 
questions  of  secondary  rank,  to  which  alone  it  is  appli- 
cable, constitute  very  rarely  a  cause  of  war.     Neverthe- 

1  See  page  311. 


ARBITRATION  327 

less,  frequent  disputes  between  states,  even  though  due 
to  questions  of  minor  importance,  and  not  acting  as  a 
direct  menace  to  the  maintenance  of  peace,  alter  friendly 
relations  between  them  and  create  an  atmosphere  of  dis- 
trust and  hostility  in  which  a  war  may  be  more  readily 
provoked  by  some  incident  or  chance  spark.  Obligatory 
arbitration,  having  the  result  of  absolving  the  interested 
states  from  all  responsibility  in  regard  to  the  solution  of 
the  question  between  them,  should  aid  in  the  preservation 
of  their  friendly  relations  and  thus  facilitate  the  peaceful 
solution  of  the  most  serious  differences  which  can  arise 
on  the  plane  of  their  highest  interests. 

"In  recognizing  thus  the  high  importance  of  obligatory 
arbitration,  it  is  indispensable  above  all  to  define  precisely 
the  sphere  of  its  application ;  it  is  necessary  to  indicate 
in  what  cases  obligatory  arbitration  is  applicable." 

The  delegation  accordingly  proposed  as  its  first  rule 
on  the  subject  that  "the  contracting  powers  agree  to  have 
recourse  to  arbitration  in  questions  pertaining  to  the  classes 
mentioned  below,  in  so  far  as  they  concern  neither  the 
vital  interests  nor  the  national  honor  of  the  parties  in 
dispute."  It  proposed,  secondly,  that  each  state  shall 
remain  the  sole  judge  of  the  question  whether  such  or 
such  a  case  should  be  submitted  to  arbitration,  —  with 
the  exception  of  those  cases,  enumerated  in  the  next  arti- 
cle, which  the  signatory  powers  agree  to  submit  to  ob- 
ligatory arbitration.  The  next  article  enumerated  a  list 
of  cases  to  be  submitted  to  obligatory  arbitration ;  and 
the  next  two  articles  were  united  and  adopted  as  Article  19, 
which  will  soon  be  referred  to  again. 

The  third  article  (Article  10  in  the  list  of  Russian  propo- 
sitions), enumerating  as  it  did  the  classes  of  cases  to  be 


328  THE   TWO   HAGUE   CONFERENCES 

submitted  to  obligatory  arbitration,  was  the  backbone 
of  the  system,  and  around  it  centered  the  debate  in  the 
committee  of  examination.  It  enumerated,  first,  disputes 
or  claims  relating  to  pecuniary  damages  incurred  by  a 
state  or  its  citizens  as  the  result  of  the  illegal  actions  or 
the  negligence  of  another  state  or  its  citizens.1  The 
second  class  of  disputes  enumerated  were  those  relating 
to  the  interpretation  or  application  of  treaties  having  to 
do  with  the  following  subjects:  postal  and  telegraph 
systems,  railways,  the  protection  of  submarine  cables, 
means  of  preventing  collisions  of  ships  on  the  high  seas, 
the  navigation  of  international  rivers  and  interoceanic 
canals,  the  protection  of  literary  and  artistic  copyrights 
and  of  commercial  patents,  trade-marks,  and  titles,  mone- 
tary and  metrical  systems,  sanitary  and  veterinary  rules 
and  regulations  in  regard  to  phylloxera,  inheritance,  extra- 
dition and  mutual  judicial  assistance,  and  boundaries 
(in  so  far  as  these  last  relate  to  purely  technical  and  non- 
political  questions). 

Chevalier  Descamps,  of  Belgium,  proposed  to  add  com- 
mercial and  consular  treaties  to  the  above  list ;  but  Pro- 
fessors de  Martens,  of  Russia,  and  Zorn,  of  Germany, 
opposed  this  for  the  reason  that  an  arbitration  clause 
could  be  inserted  in  all  such  treaties,  —  a  measure,  said 
Count  Nigra,  of  Italy,  which  the  Italian  government  has 
already  decided  to  adopt.  Count  Nigra  also  proposed 
the  addition  of  treaties  relating  to  the  free,  reciprocal 
aid  of  the  sick  and  indigent,  which  was  adopted.  M. 
Asser,  of  the  Netherlands,  proposed  the  addition  of  treaties 
relating  to  the  aid  of  the  sick  and  wounded  in  time  of  war; 

1  This  class  of  cases  will  be  considered  under  "The  Forcible  Collection 
of  Debts,"  pages  349-350. 


ARBITRATION  329 

but  Professor  Zorn  opposed  this  addition  for  the  reason 
that  it  would  result  in  dangers  and  insurmountable  dif- 
ficulties, and  would  subject  even  military  operations  to 
obligatory  arbitration;  and  after  considerable  debate 
this  proposition  was  rejected.  One  other  addition  to  the 
list  was  suggested,  and  adopted,  namely,  treaties  providing 
for  rules  concerning  epizooty  and  for  prophylactic  meas- 
ures against  phylloxera  and  other  scourges  of  agriculture. 

The  list  now  included  eleven  classes  of  treaties;  but 
Mr.  Holls,  of  the  United  States,  demanded  the  exclusion 
of  those  relating  to  international  rivers  and  interoceanic 
canals,  and  to  monetary  systems.  He  said  that  his  govern- 
ment would  regard  the  navigation  of  such  rivers  as  the 
St.  Lawrence,  Rio  Grande,  or  Columbia,  and  the  control 
of  the  Isthmian  Canal,  as  preeminently  American  ques- 
tions, and  would  not  consent  to  their  arbitration  by  a 
court  composed  mostly  of  Europeans;  while  the  mere 
classing  of  monetary  with  metrical  systems  would  affront 
a  great  American  political  party,  whose  leading  men  look 
upon  the  fixing  of  a  monetary  standard  as  a  most  impor- 
tant function  of  a  sovereign  state,  and  who  would  undoubt- 
edly defeat  the  ratification  of  the  proposed  agreement 
in  the  United  States  Senate.  This  danger  of  non-ratifica- 
tion by  the  United  States  was  reluctantly  admitted  by  the 
committee,  and  the  treaties  referred  to  were  stricken  from 
the  list,  while  the  others  were  approved  unanimously  on 
the  first  reading,  but  subject  to  the  proviso  that  they  be 
taken  up  later  for  final  settlement  after  instructions  had 
been  received  in  regard  to  them  by  the  various  delegations. 

The  second  reading  of  the  list  of  treaties  was  taken  up 
four  weeks  later,  on  the  fourth  of  July,  and  Professor 
Zorn  immediately  proposed  the  suppression  of  the  entire 


330  THE  TWO   HAGUE  CONFERENCES 

article  containing  them.  He  said  that  the  German  govern- 
ment was  not  in  a  position  to  accept  obligatory  arbitra- 
tion, and  felt  that  it  had  already  conceded  much  in  accept- 
ing the  Permanent  Court  of  Arbitration.  Professor  de 
Martens  proposed  as  a  compromise  for  the  article  in  ques- 
tion that  the  words  "  obligatory  arbitration "  be  sup- 
pressed, and  that  the  four  classes  of  cases  introduced  by 
the  German  government  in  its  separate  arbitration  treaties 
be  substituted  for  the  list  previously  agreed  upon.  But 
Professor  Zorn,  in  refusing  the  compromise,  said  that 
"  when  the  Permanent  Court  should  be  put  in  operation, 
the  opportune  moment  might  come  when,  after  individual 
experiments,  a  list  of  cases  could  be  agreed  upon  obli- 
gatory for  all.  But  to  force  this  development  unduly 
would  be  to  compromise  the  principle  of  arbitration  itself, 
with  which  we  all  sympathize." 

A  determined  effort  was  then  made  by  some  members 
of  the  committee  to  have  a  majority  recommendation  of 
the  disputed  article  reported  to  the  commission;  but  the 
representatives  of  Great  Britain,  the  United  States,  Italy, 
and  Austria  were  opposed  to  departing  from  the  rule  of 
unanimity  which  had  thus  far  been  observed.  The  first 
three  articles  proposed  by  the  Russian  delegation  were 
therefore  withdrawn,  and  the  fourth  and  fifth  united  to 
form  one  article,  which  was  adopted  unanimously.  This 
article  is  a  statement  that,  independently  of  existing  gen- 
eral or  special  treaties  which  impose  on  the  signatory 
powers  the  obligation  to  have  recourse  to  arbitration,  these 
powers  reserve  the  right  to  conclude,  either  before  the 
ratification  of  the  present  convention,  or  subsequent  to 
that  date,  new  agreements,  general  or  particular,  with 
the  object  of  extending  obligatory  arbitration  to  all  cases 


ARBITRATION 


331 


which  they  may  consider  possible  to  submit  to  it.  The 
only  opposition  or  comment  which  this  article  encoun- 
tered was  in  the  commission,  where  M.  Beldiman,  of  Rou- 
mania,  and  Professor  Veljkovitch,  of  Servia,  accepted  it 
under  the  reserve  that  it  should  imply  no  engagement  on 
the  part  of  the  signatory  powers  to  enter  into  the  treaties  of 
arbitration  referred  to.  The  president  of  the  commission 
remarked  that  there  was  no  possibility  of  such  an  implica- 
tion being  contained  in  the  article ;  and  there  was  a  general 
recognition  of  the  fact  that  its  adoption  marked  the  final 
and  definite  abandonment  of  all  plans  for  obligatory  arbitra- 
tion, however  limited,  so  far  as  the  first  conference  was  con- 
cerned. But  it  was  also  generally  believed  that  this  aban- 
donment was  wise,  since  it  was  the  sine  qua  non  of  the 
acceptance  by  Germany,  and  probably  by  several  other 
states  as  well,  of  the  Permanent  Court  of  Arbitration. 

b.    The  Conference  of  1Q07 

When  the  committee  of  examination  turned  from  the 
question  of  obligatory  arbitration  in  general  to  a  con- 
sideration of  the  specific  classes  of  cases  proposed  for 
submission  to  obligatory  arbitration,  it  took  up  first  the 
list  submitted  by  the  delegation  from  Portugal.  Marquis 
de  Soveral  stated  that  this  list  was  based  on  the  treaties 
concluded  by  various  powers  since  1899,  and  on  the  model 
treaty  adopted  by  the  Interparliamentary  Union  at  Lon- 
don in  1906,  this  latter  treaty,  in  turn,  being  based  on  the 
Russian  propositions  submitted  to  the  Conference  of  1899 
and  discussed  and  provisionally  adopted  by  that  confer- 
ence's committee  of  examination. 

The  British  delegation  added  a  number  of  cases  to  the 


332  THE   TWO   HAGUE   CONFERENCES 

Portuguese  list,  and  the  Swedish  and  Servian  delegations 
one  each.  The  classes  of  cases  voted  upon  numbered 
twenty-four,  and  they  are  enumerated  below  according  to 
the  number  of  votes  they  received  in  the  committee,  com- 
mencing with  the  six  which  received  the  largest  majority 
(twelve  votes  to  four,  with  two  abstentions,  for  each  of  the 
six  classes).  The  list  comprised  disputes  relating  to  the 
interpretation  and  application  of  treaties  concerning  the  fol- 
lowing cases :  free,  reciprocal  aid  to  sick  indigents ;  inter- 
national workingmen's  protection ;  means  of  preventing 
collisions  on  the  sea ;  systems  of  weights  and  measures ;  the 
gauging  of  ships ;  wages  and  estates  of  deceased  sailors ; 
governmental  claims  for  pecuniary  damages,  when  respon- 
sibility is  admitted  by  the  parties  concerned ;  literary  and 
artistic  copyrights ;  regulations  for  commercial  and  industrial 
associations;  pecuniary  claims  resulting  from  military  oper- 
ations, civil  war,  the  arrest  of  foreigners  or  the  seizure  of 
their  goods ;  sanitary  laws ;  the  exaction  of  taxes  and  im- 
posts from  foreigners,  equal  to  those  exacted  from  citizens ; 
customs  duties ;  rules  concerning  epizooty,  phylloxera,  and 
other  similar  pests ;  monetary  systems ;  *  the  acquisition 
and  ownership  of  wealth  by  foreigners ;  civil  or  commercial 
procedure;  pecuniary  disputes  arising  from  the  interpre- 
tation of  treaties  of  every  kind ;  repatriation ;  postal, 
telegraph,  and  telephone  systems;  dues  levied  on  ships 
(for  wharfage,  lighthouse  service,  and  pilotage),  and  sal- 
vage dues  imposed  on  damaged  or  shipwrecked  vessels; 
private  international  law ;  geodetic  questions ;  emigration ; 
patents,  trade-marks,  and  commercial  names.2 

1  The  United  States  delegation  and  seven  others  voted  against  this  class, 
while  eight  delegations  voted  for  it,   and  two  abstained. 

2  The  last  class  of  cases  received  the  least  favorable  vote:  four  in  favor, 
nine  against,  and  four  abstentions. 


ARBITRATION  333 

In  addition  to  the  above  twenty-four  classes,  there  were 
six  others  proposed,  but  not  voted  upon.  These  were 
treaties  in  regard  to :  commerce  and  navigation ;  the  pro- 
tection of  submarine  cables;  railways;  extradition;  dip- 
lomatic and  consular  privileges;  and  the  fixing  of  ter- 
ritorial boundaries  determined  by  treaties,  in  so  far  as 
they  do  not  concern  inhabited  lands. 

Some  of  these  classes  received  long  and  earnest  con- 
sideration, while  many  of  them  were  not  discussed  at  all, 
and  some  were  neither  discussed  nor  voted  upon.  Trea- 
ties in  regard  to  commerce  and  navigation,  although  not 
voted  on,  received  the  longest  consideration.  The  chief 
point  of  difficulty  in  regard  to  them  was  to  decide  upon 
some  method  of  determining  which  of  them  are  purely 
judicial,  and  neither  political  nor  economic  (judicial 
ones  alone  being  subjected  to  obligatory  arbitration,  in 
accordance  with  the  proposition)  and  which  of  them 
do  not  affect  the  essential  interests  or  the  independence  of 
the  parties  in  dispute  (this  reserve  also  being  included 
in  the  proposition).  It  was  deemed  impossible  to  define 
"commercial  treaties"  in  such  a  way  as  to  distinguish 
between  those  which  were  judicial,  political,  etc.,  and  the 
effort  was  made  to  classify  them  according  to  the  matters 
dealt  with  by  them ;  but  even  here,  as  Dr.  Drago,  of  Argen- 
tina, pointed  out,  a  treaty  dealing  with  a  single  matter,  im- 
port duties,  for  example,  might  be  either  or  both  judicial 
and  political;  and  as  Baron  von  Bieberstein,  of  Germany, 
observed,  matters  which  are  in  theory  judicial  may  be- 
come political  in  time  of  controversy.  A  subcommittee 
was  appointed  to  analyze  and  classify  the  various  kinds  of 
commercial  treaties,  and  it  presented  a  report  enumerating 
seven  kinds.     But  each  of  these  kinds  was  considered  to 


334  THE   TWO   HAGUE   CONFERENCES 

be  liable  to  the  above  mentioned  objections  to  the  general 
group  of  commercial  treaties. 

This  debate  on  commercial  treaties  illustrates  the 
kinds  of  objections  made  to  all  of  the  classes  of  cases  in  the 
proposed  list.  The  authors  of  the  list,  especially  M. 
d'Oliveira,  of  Portugal,  and  Sir  Edward  Fry,  of  Great 
Britain,  did  their  best  to  defend  it.  But  Baron  von  Bie- 
berstein,  the  author  of  most  of  the  objections,  voiced  what 
seemed  to  be  the  dominant  belief  of  the  committee  when 
he  declared  that  "the  question  is  decidedly  not  yet  ripe, 
and  it  would  be  imprudent  to  try  to  answer  it  before  it  is 
so.  .  .  .  In  prematurely  voting  obligatory  world  arbi- 
tration, we  should  only  scatter  seeds  of  discord  among 
the  nations." 

The  utmost  that  could  be  accomplished,  as  far  as  the  list 
was  concerned,  was  to  force  it,  item  by  item,  to  a  vote, 
which  proved  to  be  an  indecisive  one  in  every  instance. 
Of  the  twenty-four  classes  voted  on,  only  the  first  eight 
received  a  majority  of  the  votes  of  the  committee;  of  the 
eighteen  countries  represented  on  the  committee,  from 
four  to  nine  cast  adverse  votes  in  each  case.  Two  dele- 
gations (Germany  and  Austria)  voted  against  every  one 
of  the  classes;  and  two  others  (Belgium  and  Greece) 
either  voted  against  every  one,  or  asbtained  from  voting 
at  all ;  while  only  five  (France,  Norway,  the  Netherlands, 
Portugal,  and  Servia)  voted  for  all  of  them.1 

Before  proceeding  to  a  vote  on  the  list,  sixteen  of  the 
eighteen  delegations  represented  made  explanatory  decla- 
rations from  which  it  appeared  that  there  was  a  unanimous 

1  The  countries  represented  on  the  committee  were:  Germany,  the  United 
States,  Argentina,  Austria,  Belgium,  Brazil,  France,  Great  Britain,  Greece, 
Italy,  Mexico,  Norway,  the  Netherlands,  Portugal,  Russia,  Servia,  Sweden, 
and  Switzerland. 


ARBITRATION  335 

and  ardent  desire  for  the  progress  of  obligatory  arbitra- 
tion in  some  form,  whether  under  that  of  a  general  treaty 
or  of  special  treaties,  or  under  that  of  a  list  of  definite 
classes  of  cases  or  that  of  a  general  rule. 

Side  by  side  with  this  four  weeks  debate  in  the  commit- 
tee of  examination  on  what  classes  of  cases  should  be 
included  within  a  general  treaty,  a  twofold  struggle  pro- 
gressed, on  the  one  hand,  to  prevent  the  adoption  of  any 
general  treaty  whatever  and,  on  the  other  hand,  to  secure 
the  adoption  of  a  treaty  embodying  a  general  rule.  This 
struggle  continued  through  four  weeks  in  the  committee 
of  examination,  and  through  seven  meetings  of  the  I 
Commission. 

The  ideal  of  obligatory  arbitration  by  means  of  sep- 
arate treaties,  instead  of  by  a  general  treaty  adopted  by 
the  conference,  was  foreshadowed,  as  has  been  seen,  in 
Baron  von  Bieberstein's  address  before  the  first  subcommis- 
sion  in  the  course  of  the  preliminary  discussion.  It  was 
taken  up  in  earnest,  in  the  committee  of  examination,  by 
Dr.  Kriege,  of  Germany,  who  stated  emphatically  that  the 
German  delegation  would  vote  against  every  proposition 
to  establish  obligatory  arbitration  by  means  of  a  world 
treaty.  With  the  same  emphasis  and  frankness,  Dr. 
Kriege  stated  the  delegation's  reasons  for  this  opposition 
to  be,  first,  that  the  reservations  accompanying  these 
propositions,  such  as  the  exemption  of  those  questions 
which  concern  the  honor,  independence,  and  vital  interests 
of  states,  reduce  the  propositions  merely  to  the  name  of 
obligatory  arbitration;  second,  that  the  necessity  of  each 
dispute  being  passed  upon  by  a  legislative  body,  such  as 
the  United  States  Senate,  still  further  reduces  the  chance 
of  any  real  arbitration ;  third,  the  fact  that  the  authors  of 


336      THE  TWO  HAGUE  CONFERENCES 

these  propositions  deem  it  necessary  to  hedge  the  agree- 
ment around  with  such  precautions  shows  only  a  mediocre 
confidence  even  on  their  part  in  the  vitality  or  utility  of 
the  institution ;  and,  finally,  the  adoption  of  a  world 
treaty  would  seriously  jeopardize  the  devolopment  of  gen- 
uine obligatory  arbitration  by  barring  the  path  of  gov- 
ernments which  would  be  disposed  to  engage  themselves 
by  separate  treaties  with  other  states  to  have  recourse  to 
arbitration  for  differences  where  this  would  be  possible  as 
between  only  two  states. 

On  the  other  hand,  the  United  States  proposition  for  a 
world  treaty  couched  in  general  terms  was  championed 
by  those  who  were  determined  to  have  obligatory  arbi- 
tration adopted  by  the  conference  of  all  the  world.  This 
proposition  was  that  "differences  of  a  judicial  kind,  and 
before  all  those  relating  to  the  interpretation  of  treaties 
existing  between  two  or  more  of  the  contracting  states, 
which  may  arise  between  the  said  states  in  the  future,  and 
which  shall  not  have  been  settled  by  diplomatic  means, 
shall  be  submitted  to  arbitration,  on  the  condition  that 
they  affect  neither  the  vital  interests  nor  the  independence 
or  honor  of  either  of  the  said  states,  and  that  they  do  not 
affect  the  interests  of  other  states  not  parties  to  the  con- 
troversy." The  decision  as  to  the  relation  of  any  case  to 
vital  interests,  independence,  and  honor  is  left  by  the 
proposition  to  each  of  the  signatory  powers. 

The  advocates  of  this  proposition  argued  that  its  reser- 
vations were  desirable  in  themselves  and  necessary  to  its 
adoption ;  that  they  existed  in  most  separate  treaties,  and 
would  not  prevent  all  arbitration  in  a  general  treaty  any 
more  than  they  had  done  in  separate  treaties;  and  that 
a    general    treaty   would    not    hinder    the    conclusion    of 


ARBITRATION  337 

separate  treaties  side  by  side  with  it,  but  would  give  the 
sanction  of  the  whole  civilized  world,  in  a  very  emphatic 
form,  to  the  principle  of  obligatory  arbitration,  and  thus 
aid  greatly  its  progress  in  the  submission  of  more  and 
more  cases  under  the  general  treaty,  and  in  the  conclusion 
of  more  and  more  separate  treaties  as  well. 

The  American  general  proposition  was  united  with  the 
Anglo-Portuguese  list  of  specific  cases,  and  was  cham- 
pioned in  the  committee  by  the  advocates  of  both.  On  the 
other  hand,  the  entire  frankness  of  Dr.  Kriege  was  re- 
placed by  the  skill  in  diplomacy  and  debate  of  Baron  von 
Bieberstein,  who  was  ably  seconded  by  the  energy  and 
determination  of  M.  Merey,  of  Austria.  Under  the 
lead  of  the  Baron,  the  opposition  took  the  form  of  sug- 
gesting problems  whose  solution  was  found  to  be  most 
difficult.  These  problems  were  :  What  would  be  the  force 
of  an  arbitral  award  under  a  general  treaty  as  far  as  the 
powers  not  parties  to  the  dispute  are  concerned :  would 
it  have  the  binding  force  of  a  precedent  upon  them  also? 
Again,  suppose  that  an  arbitral  award  required  the  passage 
of  certain  legislative  measures :  how  can  the  executive 
power  in  such  countries  as  Great  Britain,  France,  the 
United  States,  etc.,  enforce  the  award  if  the  legislative 
power  is  opposed  to  the  enactment  of  the  requisite  laws? 
Again,  how  can  such  a  distinction  be  made  between  cases 
coming  under  the  jurisdiction  of  national  courts  and  those 
subject  to  international  arbitration,  which  will  not  reduce 
the  latter  class  of  cases  to  almost  nothing?  And,  finally, 
how  can  the  United  States  government  enter  into  any 
world  treaty  of  genuine  obligatory  arbitration  if  the 
United  States  Senate  must  exercise  the  right  of  approving, 
not  only  the  world  treaty  itself,  but  also  a  special  treaty 


338      THE  TWO  HAGUE  CONFERENCES 

determining  the  object,  scope,  etc.,  of  the  arbitration  for 
every  individual  dispute  ?  ' 

Each  one  of  these  problems,  except  the  last,  was  pushed 
by  Baron  von  Bieberstein  and  his  allies  through  from  three 
to  five  meetings  of  the  committee,  and  each  one,  except 
the  last,  had  to  be  referred  to  a  special  subcommittee  for 
solution ;  while  the  last  question  was  the  subject  of 
an  animated  debate  between  Count  Tornielli,  of  Italy, 
M.  Merey,  of  Austria,  and  Dr.  Scott,  of  the  United 
States.  On  the  other  hand,  the  majority  of  the  committee, 
who  were  in  favor  of  the  general  proposition  and  a  list  of 
specific  cases,  showed  great  fertility  of  resource  in  sug- 
gesting possible  solutions  of  knotty  problems ;  in  insisting 
that  these  problems  exist  and  must  be  met  in  separate 
treaties  as  well  as  in  a  general  one ;  in  emphasizing  the 
demands  of  public  opinion  in  every  civilized  country  for 
obligatory  arbitration  under  some  general  form ;  in  forc- 
ing every  proposition  to  a  vote  which  should  reveal  the 
exact  position  of  each  government ;  and  in  proposing  new 
plans  or  combinations  of  plans,  one  of  which  might  secure 
a  decided  majority. 

The  general  proposition  of  the  United  States,  above 
noted,  received  a  vote  in  the  committee  of  fourteen  against 
two,  with  two  abstentions.2  The  committee  also  adopted  3 
an  article  providing  that  the  signatory  powers  agree  to 
submit  to  arbitration,  without  reserve,  some  list  of  definite 
classes  of  disputes ;  but  no  larger  majority  could  be  secured 
for  the  proposed  list  on  the  second  reading  than  had  been 
secured  on  the  first.4     And  with  these  results  of  its  four 

1  The  provision  in  Article  4  of  the  United  States  proposition. 

2  Germany  and  Austria  voted  against  it;    Belgium  and  Greece  abstained. 

3  By  a  vote  of  thirteen  to  five;  Switzerland  here  joined  the  minority  of 
four  just  noted.  4  See  pages  332. and  334. 


ARBITRATION 


339 


weeks  discussion,  the  committee  reported  to  the  com- 
mission. 

The  commission  devoted  seven  sessions  to  the  considera- 
tion of  the  report,  and  first  listened  to  twenty-three  ad- 
dresses on  the  general  subject.  These  addresses  were 
made  by  the  representatives  of  nearly  a  score  of  countries 
and  showed  an  apparently  irreconcilable  divergence  of 
opinion  as  to  the  desirability  or  possibility  of  adopting  a 
general  treaty  of  obligatory  arbitration.  The  opposition 
to  the  report  was  commenced  with  a  pessimistic  speech 
by  M.  Beldiman,  of  Roumania,  who  was  answered  in  an 
optimistic  one  by  the  Marquis  de  Soveral.  Belgium, 
Switzerland,  Greece,  and  Turkey  were  the  other  "small 
powers"  whose  representatives  also  voiced  the  opposition, 
chiefly  for  the  reason  that  they  were  opposed  to  giving  up 
the  reserves  of  honor,  independence,  and  essential  interests 
for  any  cases  whatsoever;  Argentina,  Servia,  Persia, 
Denmark,  China,  and  Siam  were  the  other  "small  powers" 
who  furnished  spokesmen  in  favor  of  the  report.  The  brunt 
of  the  opposition  was  borne  chiefly  by  the  Baron  von 
Bieberstein,  assisted  by  M.  Merey;  and  their  arguments 
were  answered  by  Ambassador  Choate  and  Dr.  Scott, 
Dr.  Drago,  M.  Bourgeois  and  Professor  Renault  of  France, 
Sir  Edward  Fry,  and  Professor  de  Martens  of  Russia. 

All  of  the  arguments  of  the  opposition  in  the  committee 
were  again  advanced  in  new  form  and  emphasis,  in  the 
truly  titanic  debate  in  the  commission,  and  were  again 
answered  from  the  standpoint  of  jurists,  diplomatists,  and 
statesmen.  Together  with  profound  and  subtle  discus- 
sions of  international  and  constitutional  law,  some  of  the 
addresses  were  replete  with  clever  retorts  and  sparkling 
passages. 


34o 


THE   TWO   HAGUE   CONFERENCES 


"In  a  world  treaty  of  obligatory  arbitration,"  said  the  Baron 
"  the  obligation  shines  on  paper,  but  is  eclipsed  at  the  moment  when 
it  should  be  put  into  practice.  .  .  .  This  project  has  a  defect  which, 
according  to  my  opinion,  is  the  worst  of  all  in  legislation  and  the  con- 
clusion of  treaties:  it  makes  promises  which  it  cannot  fulfill.  It  calls 
itself  obligatory,  and  is  not  so.  It  boasts  of  being  a  step  in  advance, 
and  is  not  so  in  the  least.  It  vaunts  itself  as  an  efficient  means  of 
settling  international  disputes,  and  in  reality  it  enriches  our  inter- 
national law  with  a  series  of  problems  of  interpretation  which  will 
very  often  be  more  difficult  to  solve  than  the  original  disputes,  and 
which  will  even  be  of  a  kind  to  embitter  the  disputes.  It  has  been  said 
that  this  project  wins  for  the  world  the  principle  of  obligatory  ar- 
bitration. No !  For  this  principle  has  already  been  won  in  theory 
by  the  unanimous  desire  of  the  nations,  and  in  practice  by  a  long 
series,  ever  increasing,  of  separate  treaties.  Germany,  which  hesitated 
eight  years  ago,  has  concluded,  on  the  separate  system,  treaties  of 
obligatory  arbitration  both  in  general  terms  and  on  specified  sub- 
jects; it  will  follow  the  same  course  in  the  future.  .  .  .  The  great 
ideas  destined  to  rule  the  world  hew  their  way  by  their  own  strength; 
they  flourish  and  triumph  in  the  sunshine  of  individual  liberty,  and 
they  can  not  endure  the  shade  of  general  principles,  of  lists  and  cate- 
gories. This  is  a  belief  which  in  our  day,  it  seems,  is  old  fashioned 
and  out  of  date ;  but  experience  is  in  its  favor.  .  .  .  The  long  and 
assiduous  labor  which  we  have  devoted  to  the  question  of  arbitration 
has  had  only  a  partial  success.  But  we  have  entered  the  domain  of 
obligatory  arbitration,  we  have  explored  it  in  its  entire  extent,  and 
we  have  reported  on  the  difficulties  to  be  overcome.  And  if  we  do 
not  take  with  us  from  The  Hague  a  world  treaty,  we  shall  present  to 
our  governments  the  fruits  of  our  toil  which  will  aid  them  to  continue, 
in  full  appreciation  of  it,  their  journey  towards  the  noble  ideal  of 
general  and  universal  obligatory  arbitration.  It  is  true  that  the 
method  which  I  extol  will  be  less  brilliant,  but  we  can  console  our- 
selves with  the  certain  knowledge  that  we  are  traversing  a  sure  route, 
and  that  our  disinterested  labor  will  serve  the  great  cause  which  is 
dear  and  common  to  us  all." 

"...  The  matters  which  compose  this  list,"  said  Dr.  Drago, 
"however  inconsiderable  they  may  appear  when  studied  singly,  apart 
from  the  series  which  they  form,  have  nevertheless  a  great  significance 


ARBITRATION 


341 


when  considered  all  together,  as  the  first  sign  of  life  in  the  principle 
which  we  have  all  accepted.  They  are  the  first  shoots  of  the  sapling 
which  should  grow  into  the  great  king  of  the  forest.  They  appear  to 
have  a  very  slender  value ;  but  if  you  crush  them,  the  sapling  will  per- 
ish and  all  will  be  lost.  ...  In  the  experimental  affairs  of  govern- 
ment and  politics,  it  is  only  rarely  that  things  attain  at  one  leap  the 
goal  of  our  aspirations ;  they  are  much  more  often  the  result  of  indirect 
growth  than  of  the  incarnation  of  a  theoretical  conception,  —  and  are 
more  perfect  because  of  that  very  fact.  .  .  .  The  probable  difficul- 
ties are  certainly  not  those  which  we  may  imagine  at  present.  Here, 
as  in  all  things,  the  unexpected  must  be  allowed  for.  Some  time  ago, 
the  eminent  English  jurist,  Mr.  Bryce,  published  an  admirable  study 
to  show  that  not  one  of  the  anticipations  and  fears  of  the  authors  of 
the  Constitution  of  the  United  States  and  of  their  contemporaries,  not 
one  of  the  disadvantages  which  the  great  talent  of  M.  de  Tocqueville 
foresaw  later,  have  appeared  in  the  long  experience  of  much  more 
than  a  century;  and  that  American  statesmen  have  had  to  struggle 
with  wholly  different  difficulties  than  could  have  been  foreseen  or 
imagined  in  advance.  Do  not  let  us  then  be  paralyzed  by  the  fear 
of  the  subjunctive,  by  imagining  what  might  happen  but  which  happens 
rarely.  .  .  .  Hence  it  is  that  the  project  of  to-day,  incomplete  as  it 
may  seem,  plays  a  role  which  is  eminently  practical ;  it  prepares  the 
way,  it  clears  the  field,  it  saves  time  for  those  who  follow  us.  .  .  .  To 
the  civilization  which  is  supported  by  weapons  shall  succeed,  in  a 
more  or  less  distant  time,  a  civilization  founded  on  arbitration  and 
justice,  a  superior  civilization  which  is  neither  force,  nor  power,  nor 
riches,  but  rather  the  tranquil  triumph  of  justice  for  the  weak  as 
well  as  for  the  strong." 

Dr.  Drago  and  Professor  Renault  made  a  searching 
analysis  of,  and  a  powerful  answer  to,  the  objections  ad- 
vanced by  Baron  von  Bieberstein,  while  Ambassador 
Choate,  who  spoke  after  them,  contented  himself  with 
more  general  observations  and  turned  upon  the  Baron,  with 
entire  good  nature,  in  this  fashion : 

"I  desire  to  reply  to  the  important  discourse  of  Baron  von 
Bieberstein  with  all  the  deference  and  consideration  due  to  the  potent 


342  THE   TWO   HAGUE   CONFERENCES 

Empire  which  he  represents  and  to  his  own  devotion  and  rare  per- 
sonal merits.  It  seems  to  me  that  there  exist  in  this  conference  two 
first  delegates  from  Germany,  with  two  different  voices.  Baron 
von  Bieberstein  is,  on  one  side,  an  ardent  admirer  of  obligatory  ar- 
bitration in  the  abstract,  but,  on  the  other,  when  this  idea  is  to  be  put 
into  practice,  he  becomes  its  most  formidable  opponent.  It  is  for  him 
an  image  which  he  adores  in  the  sky,  but  which  loses  all  its  charm  on 
touching  the  ground ;  he  regards  it  in  his  dreams  as  a  celestial  vision, 
but  when  it  approaches  him,  he  turns  towards  the  wall  and  will  not 
look  at  it.1 

"...  According  to  our  opponents,"  Mr.  Choate  continued, 
"we  must  content  ourselves  with  these  separate  treaties,  and  halt  be- 
fore the  idea  of  a  general  world  treaty.  They  accept  our  proposal  for 
an  agreement,  but  solely  on  condition  that  it  be  not  a  universal  agree- 
ment. And  why?  A  nation  which  can  come  to  an  agreement  with 
a  score  of  other  nations,  can  it  not  agree  with  two  score  if  such  is  the 
imperious  desire  of  all  the  nations?  .  .  .  Every  power,  great  or 
small,  must  bow  before  the  will  of  public  opinion,  which  has  declared, 
and  will  declare  more  and  more  decidedly  from  this  time  forth,  that 
every  useless  war  must  be  avoided,  and  that  every  war  is  useless  when 
recourse  to  arbitration  is  possible." 2 

Sir  Edward  Fry  replied  to  Baron  von  Bieberstein's 
"subtle  and  minute  critique"  by  saying  that  he  had 
succeeded  in  proving  the  uselessness  of  the  identical  pro- 
vision in  the  treaty  of  obligatory  arbitration  concluded 
between  Germany  and  Great  Britain  in  the  month  of 
July,  1904.  He  admitted  that  in  view  of  the  reservations 
in  the  proposed  treaty,  its  obligatory  character  is  not 
very  pronounced  and  the  "vinculum  juris"  can  be  broken 
without  difficulty. 

1  Baron  von  Bieberstein,  in  a  very  brief  and  friendly  reply  to  this  sally, 
insisted  that  the  minutes  would  prove  the  entire  consistency  of  his  devotion 
to  the  right  kind  of  obligatory  arbitration. 

2  Mr.  Choate's  address  was  made  in  English,  and  immediately  repeated 
to  the  commission  in  French,  without  any  preparation  or  forewarning,  by 
Baron  d'Estournelles  de  Constant,  of  France. 


ARBITRATION  343 

"But,"  he  repeated,  "the  nations  of  the  world  are  not  con 
trolled  solely  by  juristic  ideas  or  bound  solely  by  'vincula  juris,'  and 
I  believe  that  the  treaty,  however  weak  it  may  be  from  the  legal  point 
of  view,  will  have  none  the  less  a  very  great  moral  value  as  being  the 
expression  of  the  conscience  of  the  civilized  world.  A  law  passed  by 
a  people  is  inseparable  from  the  moral  ideal  which  has  inspired  it; 
we  can  not  pronounce  a  divorce  between  the  moral  conception  and  the 
law  which  is  its  expression.  It  is  certain  that,  just  as  a  law  can  be 
of  any  utility  only  when  it  rests  on  general  consent,  a  moral  ideal 
gains  by  being  expressed  in  terms  of  law." 

M.  Merey  commenced  his  speech  in  opposition  to  the 
treaty  by  declaring  that  he  was,  up  to  a  certain  point, 
a  partisan  of  obligatory  arbitration  properly  so-called, 
that  is  to  say,  without  restriction  or  reserves,  and  that  he 
was  not  a  purely  Platonic  partisan  of  it.  He  asserted  that 
the  adoption  of  the  proposed  treaty  would  contribute  noth- 
ing to  the  peace  of  the  world  or  to  the  satisfaction  of  the 
demands  of  humanity;  and  that,  like  certain  modest  and 
inoffensive  family  medicines,  obligatory  arbitration  would, 
if  applied  to  all  maladies  indiscriminately,  exaggerate  some 
and  produce  others  even  worse.  The  members  of  the  con- 
ference, he  said,  not  being  specialists  in  regard  to  the  various 
matters  in  the  proposed  list,  would  not  escape  the  evils 
from  which  they  suffered  at  present,  but  would  fly  to  those 
they  knew  not  of. 

M.  Bourgeois,  presiding  over  the  commission  and  sum- 
ming up  its  long  debate,  expressed  appreciation  of  the  work 
of  both  the  progressive  majority  and  the  conservative 
minority  in  opposition:  "For  it  is  by  this  'contradictory 
collaboration'  that  all  the  light  is  produced."  He  then 
pointed  out  the  points  on  which  all  were  united,  namely,  the 
acceptance  of  the  principle  of  obligatory  arbitration,  re- 
joicing over  the  thirty-three  treaties  of   permanent  obli- 


344  THE   TW0   HAGUE   CONFERENCES 

gatory  arbitration  concluded  since  1899,  and  the  convic- 
tion that  obligatory  arbitration  can  be  applied  to  all 
juristic  differences  and  those  relative  to  the  interpretation 
of  treaties.  The  two  points  of  divergence  he  stated  to  be : 
whether  obligatory  arbitration  should  be  established  by 
a  general  treaty,  under  the  reserves  of  independence  and 
vital  interests,  for  judicial  disputes  and  those  relating  to  the 
interpretation  of  treaties;  and  whether,  for  some  of  these 
disputes,  obligatory  arbitration  without  reserves  should  be 
established  by  a  general  treaty.  The  opposition  seemed  to 
him  to  be  more  pronounced  against  the  first  point  than 
against  the  second.  After  stating  what  appeared  to  him  to 
be  some  of  the  advantages  of  a  general  treaty  over  separate 
treaties  of  obligatory  arbitration,  M.  Bourgeois  concluded 
his  address  with  the  words : 

"By  thus  establishing  in  their  midst  a  realm  open  alike  to  every 
civilized  state  and  subject  exclusively  and  by  obligation  to  the  rule 
of  law,  the  powers  represented  at  The  Hague  will  not  only  promote, 
decisively  and  more  rapidly  than  by  any  other  means,  the  great 
cause  of  arbitration,  but  they  will  also  declare,  as  they  could  not  do 
in  any  other  way,  a  common  good  will  and  respect  for  international 
law,  a  common  feeling  of  moral  obligation  for  international  duty. 
And  this  will  be,  perhaps,  the  highest  lesson  which  can  be  given  to 
men." 

The  general  discussion  having  ended,  the  commission 
considered  and  voted  upon  the  various  parts  of  the  plan. 
Two  features  of  this  consideration  may  be  noted.  One 
of  the  items  gave  occasion  to  M.  Merey  to  make  one 
more  vigorous  criticism  of  the  part  played  by  the  United 
States  Senate  in  the  ratification  of  treaties,  and  he  was 
again  answered  concisely  but  emphatically  by  Dr.  Scott  and 
Professor  Renault.     Another  item  which  provided  for  the 


ARBITRATION  345 

exemption  from  obligatory  arbitration  of  disputes  in  re- 
gard to  the  interpretation  or  application  of  extraterri- 
torial rights,  caused  the  delegations  from  China,  Persia, 
and  Siam  to  declare  that  they  would  not  sign  the  treaty 
with  this  item  in  it.  Thereupon  the  delegations  from  the 
United  States,  Germany,  and  Russia  moved  to  strike  out 
the  item  as  offensive  and  unnecessary,  and  the  motion  was 
carried  by  a  vote  of  thirty-six  to  two,1  with  five  abstentions. 

When  the  commission  proceeded  to  a  vote  on  the  various 
parts  of  the  plan  for  obligatory  arbitration,  it  was  found 
that  the  minority  was  only  a  trifle  less  strong,  numerically, 
than  it  had  been  in  the  committee.  The  American  propo- 
sition of  obligatory  arbitration  for  judicial  disputes  and 
those  relating  to  the  interpretation  and  application  of  trea- 
ties, under  the  reserves  of  vital  interests,  independence, 
honor,  and  the  interests  of  third  parties,  received  a  vote  of 
thirty-five  to  nine  in  the  commission,  as  against  fourteen 
to  four  in  the  committee;  obligatory  arbitration,  without 
any  reserves,  for  some  list  of  cases,  received  a  vote  of  thirty- 
three  to  eleven  in  the  commission,  as  against  thirteen  to 
five  in  the  committee ;  and  obligatory  arbitration,  without 
any  reserves,  for  the  proposed  list  of  cases,  received  a  vote 
of  thirty-one  to  thirteen  in  the  commission,  as  against 
thirteen  to  six  in  the  committee.2 

No  sooner  had  the  vote  shown  the  strength  of  the  minority 
than  it  began  to  propose  the  passage  of  resolutions  (vceux) 
designed    to    shelve    the    whole    question.      M.    Merey 

1  Great  Britain  and  France  voted  for  the  retention  of  the  provision. 

2  The  minority  in  the  commission  included  the  delegations  of  German}', 
Austria,  Greece,  Roumania,  and  Turkey,  which  invariably  voted  in  the  nega- 
tive; the  delegations  of  Belgium,  Bulgaria,  and  Switzerland,  which  usually 
voted  in  the  negative ;  and  the  delegations  of  Japan,  Luxemburg,  and  Mon- 
tenegro, which  invariably  abstained. 


346  THE  TWO   HAGUE   CONFERENCES 

had  proposed  a  resolution  in  the  committee  and  urged  its 
adoption  as  the  committee's  report ;  he  now  renewed  in 
the  commission  the  motion  of  his  resolution,  which  stated 
that  the  conference,  being  convinced  that  certain  strictly 
defined  matters  are  capable  of  being  submitted  to  obliga- 
tory arbitration  without  any  restriction  whatever,  but  being 
unable  to  decide  upon  those  matters  because  of  their  tech- 
nical character  and  its  own  lack  of  special  knowledge  and 
experience  regarding  them,  resolved  to  invite  the  govern- 
ments themselves  to  enter  upon  a  profound  study  of  the 
said  matters,  after  the  adjournment  of  the  conference,  and 
to  inform  each  other,  through  the  medium  of  the  Nether- 
lands government,  of  those  which  they  may  be  ready  to 
make  the  subjects  of  a  treaty  of  obligatory  arbitration. 

Sir  Edward  Fry  opposed  this  resolution  for  the  reason  that 
the  vote  had  shown  the  readiness  of  a  number  of  govern- 
ments to  enter  at  once  into  such  a  treaty.  And  Ambassa- 
dor Choate  objected  vigorously  to  a  small  minority  of  states 
preventing  a  large  majority  from  accomplishing  their  desire 
and  their  duty.  This  caused  M.  Merey  to  reply  that, 
since  the  conference  was  a  diplomatic  and  not  a  parlia- 
mentary body,  there  could  be  no  question  of  minority  and 
majority.  M.  Nelidow,  of  Russia,  president  of  the  con- 
ference, and  Baron  von  Bieberstein  confirmed  M.  Merey's 
view  of  majority  and  minority,  and  said  that  if  the  rule 
of  unanimity  on  all  important  measures  and  approximate 
unanimity  on  subordinate  measures  were  not  strictly 
adhered  to  by  the  conference,  all  future  international  con- 
ferences would  be  jeopardized.  But  the  commission  would 
not  "stultify  itself"  by  adopting  the  Austrian  resolution, 
and  rejected  it  by  a  vote  of  thirty  to  fourteen. 

Having  reached  this  apparent  cul-de-sac,  the  commission 


ARBITRATION 


347 


yielded  to  the  persuasive  diplomacy  of  Count  Tornielli, 
who  had  nearly  always  voted  with  the  majority.  It  was 
no  time,  he  said,  for  long  speeches,  but  there  were  some 
statements  of  fact  as  to  the  work  accomplished  which  should 
be  made.  Let  these  statements  be  embodied  in  a  resolu- 
tion. "And  then,"  he  continued,  "let  us  wisely  stop  there. 
We  have  done  a  good  day's  work.  Let  us  be  satisfied 
with  the  work  accomplished,  and  leave  it  to  time  to  ripen  its 
fruit.  If,  in  looking  back,  some  of  us  experience  some 
regret  at  seeing  certain  tasks  unaccomplished,  in  turning 
our  eyes  towards  the  future,  we  are  all  filled  with  con- 
fidence, and  not  the  least  discouragement  weighs  on  our 
spirits."  Members  of  the  minority  heartily  approved  this 
suggestion,  as  did  M.  Bourgeois,  on  behalf  of  the  majority 
and  the  commission.  "It  must  be  known  to  the  world," 
said  the  latter,  "that  the  cause  of  obligatory  arbitration 
issues  from  the  second  Peace  Conference  victorious  and  not 
vanquished." 

M.  Bourgeois  and  M.  Nelidow  were  accordingly  ap- 
pointed a  committee  to  report  a  resolution,  which  they 
did  in  the  following  words : 

"The  commission,  in  accord  with  the  spirit  of  harmony  and  of 
mutual  concessions,  which  is  the  very  soul  of  the  Peace  Conference, 
has  resolved  to  present  to  the  conference  the  following  declaration 
which,  while  reserving  to  each  of  the  states  represented  the  credit  of 
its  votes,  permits  them  all  to  affirm  the  principles  which  they  consider 
to  be  unanimously  recognized.  The  commission  is  unanimous,  first, 
in  recognizing  the  principle  of  obligatory  arbitration;  second,  in 
declaring  that  certain  differences,  and  especially  those  relating  to  the 
interpretation  and  application  of  international  treaties,  are  capable 
of  being  submitted  to  obligatory  arbitration  without  any  restriction 
whatever.  It  is  unanimous,  finally,  in  proclaiming  that,  though  it 
has  not  been  able  to  conclude  at  present  a  convention  of  this  tenor,  the 
diversities  of  opinion  which  have  been  revealed  have  not  exceeded  the 


348  THE   TWO   HAGUE   CONFERENCES 

bounds  of  a  juristic  controversy,  and  that,  in  laboring  here  together 
during  four  months,  all  the  states  of  the  world  have  not  only  learned 
to  understand  and  approach  each  other  more  closely,  but  have  re- 
vealed in  the  course  of  their  long  collaboration  a  very  exalted  feeling 
for  the  common  welfare  of  humanity." 

When  this  resolution  was  presented,  the  representatives 
of  Belgium  and  Roumania  at  once  accepted  it  in  the  spirit 
of  conciliation.  But  Mr.  Choate,  on  behalf  of  the  Ameri- 
can delegation,  opposed  its  adoption,  "not,"  he  said,  "be- 
cause we  are  not  in  favor  of  the  principle  of  obligatory 
arbitration,  for  that  is  what  we  have  struggled  for  from  the 
beginning;  but  because  it  is  in  reality  a  surrender  by  the 
commission  of  the  advanced  position  which,  by  a  vote  so 
decisive,  it  has  already  attained."  Sir  Edward  Fry,  on 
the  other  hand,  said :  "I  regret  with  all  my  heart  that  the 
project  will  not  be  presented  to  the  conference.  I  regret 
equally  that  the  United  States  of  America  does  not  feel 
able  to  give  an  affirmative  vote  on  the  declaration  pre- 
sented to  us.  But  I  regard  this  declaration  as  a  state- 
ment of  things  already  accomplished  by  the  commission 
and  not  as  a  surrender  of  its  results."  M.  Nelidow  then 
made  a  short  appeal  for  unanimity,  and  the  president  put 
the  resolution  to  a  vote,  with  the  result  that  it  was  adopted 
unanimously,  except  for  four  abstentions  (the  United 
States,  Haiti,  Japan,  and  Turkey  1). 

At  a  subsequent  plenary  session  of  the  conference,  the 
above  resolution  was  adopted,  without  discussion,  by  an 
affirmative  vote  of  forty-one,  with  three  abstentions  (the 
United  States,  Japan  and  Turkey). 

1  The  Japanese  delegation  stated,  as  its  reason  for  abstaining  from  the 
vote,  the  fact  that  it  had  taken  no  part  in  the  discussion  of  the  question  of 
obligatory  arbitration;  and  the  Turkish  delegation  said  that  it  abstained 
because  of  lack  of  instructions. 


ARBITRATION  .      349 

3.   The  Forcible  Collection  of  Debts 
a.    The  Conference  of  i8gg 

One  of  the  classes  of  cases  proposed  by  the  Russian  dele- 
gation for  submission  to  obligatory  arbitration  was  that 
which  includes  differences  or  claims  relating  to  pecuniary 
damages  suffered  by  one  state  or  its  citizens  as  the  result 
of  the  illegal  action  or  the  negligence  of  another  state  or 
its  citizens. 

Professor  de  Martens  explained  that  this  was  not  meant 
to  apply  to  disputes  between  the  citizens  of  one  state  and 
the  citizens  of  another,  except  when  a  government  takes 
up  the  cause  of  its  citizens.  M.  de  Staal,  of  Russia,  pro- 
posed to  add  the  words  "in  so  far  as  they  are  not  within 
the  competence  of  the  local  authorities."  But  on  the  mo- 
tion of  Sir  Julian  Pauncefote,  of  Great  Britain,  the  word- 
ing adopted  by  the  committee,  on  the  first  reading,  was 
simply  "differences  or  claims  relating  to  pecuniary  dam- 
ages." 

It  was  found  on  further  consideration,  however,  that  at 
least  three  distinct  questions  were  connected  with  this  simple 
phraseology.  First,  shall  the  arbitration  have  to  do  with 
the  responsibility  of  the  state  against  whom  or  whose  citizens 
the  claim  is  made?  The  committee  answered  this  ques- 
tion in  the  negative  by  a  vote  of  six  to  four.1  Second,  the 
responsibility  is  admitted,  shall  the  arbitration  have  to  do 
with  the  amount  of  the  damages  claimed  ?  This  question 
was  answered  unanimously  in  the  affirmative.  Third, 
shall  the  arbitration  cease  to  be  obligatory  when  the  dam- 

1  The  majority  vote  was  cast  by  the  representatives  of  France,  the  United 
States,  Austria,  Great  Britain,  Russia,  and  Germany. 


350  THE   TWO   HAGUE   CONFERENCES 

ages  awarded  are  above  a  certain  sum ;  in  other  words, 
shall  a  maximum  limit  of  indemnity  be  fixed  in  cases  of 
obligatory  arbitration?  The  committee  answered  this 
question  in  the  negative  by  a  vote  of  seven  to  three.1 

After  these  preliminary  votes,  the  article  was  so  stated 
as  to  include  "differences  or  disputes  relating  to  the  deter- 
mination of  the  amount  of  pecuniary  damages,  when  the 
responsibility  for  the  damages  has  been  previously  ad- 
mitted." But  although  the  article  as  thus  stated  was  agreed 
to  unanimously  by  the  committee,  it  was  later  discarded, 
together  with  all  the  other  specific  cases  proposed  for  obli- 
gatory arbitration.  Its  failure  was  much  regretted,  both 
because  of  the  frequency  and  troublesome  character  of 
such  disputes  and  because,  as  shown  by  Professor  de  Mar- 
tens in  the  course  of  the  debate,  they  have  formed  the  large 
majority  of  disputes  submitted  to  arbitration,  and  hence 
have  proven  themselves  especially  adaptable  to  such  solu- 
tion. 

b.    The  Conference  of  igoj 

On  the  list  of  cases  proposed  by  Great  Britain's  dele- 
gation for  submission  to  obligatory  arbitration  without 
any  reserve  were  included  "pecuniary  claims  for  the  prin- 
cipal of  damages  when  the  right  of  indemnity  is  recognized 
by  the  parties  to  the  case."  This  proposition  had  been 
made  in  1899  by  Russia,  had  been  carefully  discussed  and 
unanimously  passed  by  the  committee  of  examination,  and 
discarded,  together  with  all  cases  proposed  for  obliga- 
tory arbitration.  In  1907  it  was  submitted  to  a  vote,  with- 
out   discussion,   in   the   committee   of    examination,   and 

1  The  minority  vote  was  cast  by  the  representatives  of  the  United  States. 
Great  Britain,  and  Germany. 


ARBITRATION  351 

was  adopted  by  a  vote  of  eleven  to  four,  with  three  ab- 
stentions. 

The  Swedish  delegation  also  proposed  as  an  addition 
to  the  British  list  "pecuniary  controversies  relating  to  the 
interpretation  or  application  of  treaties  of  every  kind," 
and  also  "pecuniary  controversies  caused  by  military 
operations,  civil  war,  or  so-called  'peaceful'  blockade,  or 
by  the  arrest  of  strangers  or  seizure  of  their  goods."  The 
committee  adopted,  without  discussion,  the  first  of  these 
propositions  by  a  vote  of  nine  to  six,  with '  three  absten- 
tions; and,  after  striking  out  (by  a  vote  of  six  to  two,  with 
ten  abstentions)  the  words  "or  so-called  peaceful  blockade," 
as  not  pertaining  to  its  work,  the  committee  adopted  the 
second  proposition  also  by  a  vote  of  seven  to  six,  with  five 
abstentions. 

The  three  propositions  above  stated  were  again  voted, 
on  the  second  reading,  by  the  committee  of  examination, 
and  with  about  the  same  feeble  majorities.  But  only  the 
British  proposition  was  voted  on  by  the  commission,  which 
adopted  it,  also  without  discussion,  by  a  vote  of  thirty-one  to 
eight,  with  five  abstentions ;  and  when  the  commission  de- 
cided not  to  report  the  proposed  list  of  cases  for  obligatory 
arbitration,  this  proposition  also  failed  with  the  others. 

The  propositions  made  in  1899  and  1907  in  regard  to 
obligatory  arbitration  for  pecuniary  claims,  which  have 
thus  far  been  referred  to,  had  to  do  only  with  controversies 
in  regard  to  damages,  and  not  with  pecuniary  claims  aris- 
ing from  the  contracted  indebtedness  of  states  to  individ- 
uals. This  latter  class  of  claims  was  made  the  subject  of 
a  most  important  proposition  in  1907,  presented  by  the 
delegation  of  the  United  States  and  known  as  the  "  Porter 
Proposition." 


352 


THE   TWO   HAGUE   CONFERENCES 


At  the  second  plenary  session  of  the  conference,  on  the 
19th  of  June,  and  at  the  first  meeting  of  the  I  Commission, 
three  days  later,  General  Horace  Porter  announced  on 
behalf  of  the  United  States  delegation  that  he  would  pre- 
sent a  proposition  for  "an  agreement  to  observe  some  re- 
strictions on  the  subject  of  the  use  of  force  in  the  collection 
of  ordinary  public  debts  arising  from  contracts." 

This  proposition  was  duly  presented  and,  with  a  slight 
amendment  made  by  the  United  States  delegation  itself, 
read  as  follows : 

"With  the  object  of  preventing  between  nations  armed  conflicts 
of  a  purely  pecuniary  origin,  arising  from  contractual  debts  {dettes 
contractuelles),  claimed  by  the  government  of  one  country  as  due  to 
its  citizens,  the  Signatory  Powers  agree  not  to  have  recourse  to  armed 
force  for  the  collection  of  such  contractual  debts.  However,  this 
stipulation  is  not  to  be  enforced  when  the  debtor  state  refuses  or  leaves 
unanswered  an  offer  of  arbitration ;  or,  if  accepting  it,  makes  impos- 
sible the  establishment  of  the  compromise ; '  or,  after  the  arbitration, 
fails  to  comply  with  the  terms  of  the  award.  It  is  further  agreed  that 
the  arbitration  referred  to  will  be  suitable  for  the  procedure  de- 
scribed in  Chapter  III  of  the  Convention  for  the  Peaceful  Settlement 
of  International  Differences  adopted  at  The  Hague,  and  that  it  will 
determine,  unless  agreement  has  been  made  to  the  contrary,  the  jus- 
tice and  the  amount  of  the  debt  and  the  time  and  manner  of  its 
payment." 

When  the  subcommission  took  up  the  consideration  of 
this  proposition,  on  the  16th  of  July,  General  Porter  opened 
the  discussion  by  a  clear  and  forceful  address. 

"There  exists,"  he  said,  "a  general  and  a  growing  belief  that  the 
use  of  armed  force  for  the  collection  of  a  contractual  debt  from  a  debtor 
nation,  unless  it  is  restrained  by  some  general  international  agreement, 

1  The  compromis  is  an  agreement  as  to  the  precise  question  to  be  arbi- 
trated, the  time,  place,  and  mode  of  the  arbitration,  etc. 


ARBITRATION 


353 


may  become  the  most  prolific  source  of  conflicts,  or  may  at  least 
occasion  peaceful  blockades,  threats  of  hostilities,  or  rumors  of  warlike 
intentions  well  adapted  to  the  disturbance  of  commerce,  the  unfavor- 
able depression  of  markets  and  the  creation  of  a  feeling  of  uneasiness, 
and  thus  disturb  not  only  the  countries  interested  in  the  quarrel,  but 
even  those  who  are  strangers  to  it. 

"If  the  debtor  nation  resists,  war  becomes  inevitable.  If,  to  en- 
force payment,  recourse  is  had  to  what  is  called  "a  peaceful  blockade," 
there  is  a  growing  tendency  on  the  part  of  neutral  commercial  nations 
to  disregard  it,  and  war  must  be  declared  in  order  to  render  it  effective. 
It  may  be,  in  addition,  that  other  states  have  claims  to  assert  against 
the  same  country;  they  will  not  fail  to  protest  against  arbitrary  seizure 
practiced  by  a  single  creditor  upon  the  property  of  their  common 
debtor. 

"The  case  most  frequently  in  evidence  is  that  of  a  capitalist  or 
speculator  who,  depriving  his  own  country  of  his  services  and  money, 
goes  to  make  an  adventure  in  a  foreign  land  with  the  sole  object  of 
increasing  his  private  fortune.  If  he  gains  millions,  he  will  not  divide 
his  profits  with  his  government;  but  if  he  loses,  he  will  go  to  it  to 
demand  that  war  be  made  to  secure  for  him  the  sums  which  he  pre- 
tends are  due  him  and  which  are  often  enormously  exaggerated. 
The  onerous  conditions  imposed  on  the  loan  prove  that  the  lender 
recognizes  the  greatness  of  the  risk  which  he  runs.  Very  often  he 
buys  on  the  market  at  a  low  price  certificates  of  indebtedness  issued 
by  the  debtor  state  in  question,  and  demands  that  they  be  paid  to  him 
at  par.  In  fact,  in  the  game  which  he  plays,  he  counts  on  putting 
into  practice  the  principle  of  'Heads,  I  win;  tails,  you  lose.' 

"The  minister  of  foreign  affairs  in  his  own  country,  to  whom  he 
appeals,  has  usually  not  adequate  means  at  his. disposal  of  making  a 
complete  investigation  of  the  matter,  of  procuring  and  examining  all 
the  necessary  documents,  of  ascertaining  the  evidence  of  the  adverse 
party,  and  of  forming  an  exact  idea  of  the  true  merits  of  the  case  sub- 
mitted to  him.  He  has  no  jury  to  establish  the  facts,  no  competent 
and  impartial  court  to  pass  on  the  question  of  jurisprudence,  no  tri- 
bunal to  decide  on  the  equity  of  the  claim.  If  he  makes  a  decision, 
he  will  know  that  he  is  violating  one  of  the  fundamental  principles  of 
the  administration  of  justice  by  admitting  that  a  sentence  may  be 
rendered  by  one  alone  of  the  parties  interested  in  the  dispute. 


354  THE  TWO   HAGUE   CONFERENCES 

"If  the  amount  of  the  claim  is  collected  by  a  means  as  severe  as  the 
use  of  armed  force,  the  taxpayers  of  the  nation  resorting  to  force  must 
pay  for  the  enrichment  of  a  capitalist  or  speculator  who  desired  to  run 
the  risk  of  winning  or  losing  in  a  foreign  country,  even  though  the 
expense  of  the  collection  is  a  hundred  times  as  great  as  the  amount 
of  the  claim. 

"Among  the  questions  with  which  a  minister  of  foreign  affairs  may 
have  to  be  engaged,  there  is  perhaps  none  more  annoying  or  more 
perplexing  than  the  pecuniary  claims  of  individuals  against  a  foreign 
government  when  they  are  formulated  according  to  the  estimates  of 
the  interested  parties  themselves,  and  for  which  payment  is  demanded 
even  though  this  may  entail  the  terrible  consequence  of  military 
operations.  If  capitalists  or  speculators,  engaging  in  financial  transac- 
tions with  a  foreign  government,  could  be  told  that  they  must  act 
according  to  the  principle  of  caveat  emptor ;  or  if  they  could  be  given 
to  understand,  at  least,  that  the  government  of  their  country  would 
not  put  its  means  of  coercion  at  the  service  of  their  claims,  except  in 
so  far  as  the  latter  have  been  legalized  by  a  judicial  decision,  or  a 
competent  court  or  arbitral  tribunal  has  established  their  true  value 
and  the  debtor  nation  has  then  arbitrarily  refused  to  submit  to  the 
decision,  —  if  such  a  stand  could  be  taken,  state  departments  would 
be  relieved  of  one  of  their  most  vexatious  and  difficult  duties. 

"History  establishes  the  fact  that  the  majority  of  such  claims  pre- 
sent a  truly  astonishing  exaggeration  of  the  sums  due.  Statistics 
show  that  during  the  last  sixty  years  mixed  commissions  and  arbitral 
tribunals  have  examined  thirteen  of  the  most  important  demands 
for  damages,  indemnities,  or  unpaid  contractual  debts,  claimed  by 
the  subjects  or  citizens  of  one  country  as  due  by  the  government 
of  another  country.  The  largest  sum  allowed  in  any  single  case 
was  only  eighty  per  cent  of  the  total  claim,  while  in  some  cases 
the  percentage  fell  to  the  ridiculous  amount  of  three  quarters  of  one 
per  cent. 

"One  of  our  American  citizens  some  time  ago  made  a  contract 
with  a  foreign  government  permitting  him  to  manufacture  materials 
of  construction.  Difficulties  arose  in  the  execution  of  the  contract, 
and  it  was  cancelled.  The  grantee  took  advantage  of  this  to  demand 
an  indemnity  of  about  450,000  francs,  which  was  refused  him.  He 
secured  the  aid  of  the  United  States  government  for  his  cause,  and 


ARBITRATION 


355 


after  long  correspondence,  proceedings,  and  negotiations,  the  govern- 
ment sent  a  fleet  of  nineteen  war  ships  to  support  the  American  claim. 
Finally,  after  sixteen  years  of  effort,  our  government  was  not  able  to 
recover  a  single  centime,  and  it  had  spent  more  than  twelve  millions 
[of  francs]  to  reach  this  conclusion.  We  consider  this  lesson  instruc- 
tive, but  also  expensive.  To  use  a  current  expression:  'The  game  is 
not  worth  the  candle.' 

"It  sometimes  happens  that  the  citizens  of  one  power  procure  a 
decision  from  their  government  to  send  a  fleet  to  constrain  another 
government  because  of  a  default  in  the  payment  of  interest  on  notes 
held  by  them.  The  report  of  such  a  measure  causes  a  rise  of  prices. 
The  citizens  referred  to  profit  by  this  to  sell  their  notes  at  a  profit,  in 
foreign  markets,  so  that  after  the  claimant  power  has  incurred  expense 
and  effort  to  enforce  payment,  the  profit  of  it  goes  chiefly  to  foreigners. 

"These  examples  alone  should  forever  deter  civilized  nations  from 
resorting  to  arbitrary  measures  of  coercion  to  impose  on  a  foreign 
government  the  payment  of  a  debt  (that  is  to  say,  of  a  contractual 
debt)  which  has  not  been  definitely  ratified  by  an  impartial  tribunal. 

"Such  coercitive  measures  are  equivalent  to  the  practice  once  in 
vogue  of  imprisoning  individuals  for  debt,  except  that  this  constraint 
could  not  be  enforced  upon  a  debtor  unless  a  competent  tribunal  had 
regularly  given  a  judgment  in  favor  of  the  creditor.  Just  as  the 
maintenance  of  the  debtor  became  an  expense  to  the  state,  and  as  his 
confinement  prevented  him  from  earning  something  to  pay  his  debt 
and  even  to  provide  for  the  needs  of  his  family,  so  the  blockade  of  a 
port  of  a  debtor  nation  and  the  destruction  of  its  wealth  through  the 
interruption  of  its  foreign  commerce  by  means  of  hostile  fleets  and 
armies,  deprive  it  of  the  revenues  which  it  derives  from  its  customs 
duties,  and  may  even  oblige  it  to  incur  expense  for  opposing  force  to 
force.  This  results  only  in  decreasing  its  means  of  paying  its  debts. 
Imprisonment  for  debt,  in  the  case  of  individuals,  came  to  be  regarded 
as  illogical,  cruel,  and  ineffective,  and  was  generally  abolished.  The 
analogous  practice  employed  by  nations  against  a  debtor  state  should 
be  likewise  abandoned. 

"Forced  collections  may  occasion  a  demand  for  immediate  pay- 
ment at  a  time  when  the  debtor  nation,  having  had  to  suffer,  perhaps, 
from  an  insurrection,  a  revolution,  the  failure  of  its  crops,  an  inunda- 
tion, an  earthquake,  or  some  other  calamity  which  it  could  not  pre- 


356      THE  TWO  HAGUE  CONFERENCES 

vent,  has  not  the  means  of  immediate  payment,  although  it  could 
honor  its  obligations  if  accorded  a  reasonable  delay.  Numerous 
examples  could  be  cited  of  states  which  at  one  time  found  themselves 
unable  to  pay  their  debts  at  maturity,  but  which,  having  procured  a 
suitable  delay,  paid  in  full,  interest  included,  all  their  obligations,  and 
now  enjoy  good  credit  in  the  family  of  nations. 

"Neither  the  prestige  nor  the  honor  of  a  state  can  be  considered 
as  brought  into  question,  if  it  refuse  to  compel  by  force  the  payment 
of  a  contractual  debt  due,  or  claimed  as  due,  to  one  of  its  citizens  from 
another  government.  Nor  have  its  citizens  the  slightest  right  to 
demand  that  a  private  contract  be  converted  into  a  national  obli- 
gation. If  such  were  the  case,  it  would  be  nearly  equivalent  to  their 
having,  from  the  beginning,  their  own  government  as  guarantor  of 
the  payment. 

"The  most  eminent  writers  on  international  law  are  of  opinion 
that  the  state  has  not  the  least  obligation  in  this  matter  towards  its 
subjects  or  citizens,  and  that  its  action  in  such  cases  is  purely  optional. 
Although  these  authors  differ  as  to  the  utility  of  intervention,  re- 
searches show  that  the  majority  of  them  admit  that  the  duty  of  inter- 
vention does  not  exist." 

General  Porter  here  quoted  from  a  number  of  eminent 
statesmen,  diplomatists,  and  jurisconsults  to  prove  this  asser- 
tion. Among  them  were  Lord  Palmerston  (1848),  Lord 
John  Russell  (1861),  Lord  Salisbury  (1880),  Alexander 
Hamilton  (1787),  Hamilton  Fish  (1871),  James  G.  Blaine 
(1881),  Secretary  Bayard  (1885),  and  President  Roosevelt 
(1906). 

"We  see,"  he  continued,  "that  modern  public  opinion  is  resolutely 
opposed  to  the  collection  of  contractual  debts  by  force.  .  .  .  Among 
modern  jurisconsults  best  versed  in  questions  of  international  law  who 
deny  the  right  of  intervention,  or  admit  the  principle  of  noninterven- 
tion with  or  without  reserves,  may  be  cited  De  Martens,  Bonfils, 
Heffter,  Woolsey,  Wilson  and  Tucker,  Walker,  De  Floecker,  Liszt, 
Despagnet,  Rivier,  Nys,  Merignac,  and  others.  It  is  unnecessary  to 
recall  the  consideration  and  profound  study  of  this  subject  by  the 


ARBITRATION  357 

Argentine  Republic,  and  the  complete  discussion  of  this  question, 
and  of  various  others  relating  to  it,  contained  in  the  works  of  the  former 
Secretary  of  State  of  that  Republic,  at  present  one  of  our  highly  es- 
teemed colleagues  in  this  conference.  .  .  . 

"Expeditions  undertaken  for  the  purpose  of  collecting  debts  have 
rarely  been  successful.  It  would  be  to  assume  a  grave  responsibility 
in  our  era  to  relegate  contested  pecuniary  claims  to  the  domain  of 
force,  instead  of  placing  them  under  the  regime  of  law,  and  thus  to 
substitute  the  science  of  destruction  for  the  fruitful  arts  of  peace. 

"The  principle  of  nonintervention  by  force  would  be  an  inesti- 
mable blessing  to  all  the  parties  interested.  First,  to  the  nation  whose 
citizens  have  become  creditors  of  a  foreign  government ;  for  this  would 
be  a  warning  to  a  class  of  persons  too  prone  to  speculate  on  the  neces- 
sities of  a  weak  and  embarrassed  government,  and  who  count  on  their 
own  for  the  success  of  their  operations. .  It  would  permit  their  gov- 
ernment to  continue  to  entertain  normal  relations  with  the  foreign 
government;  it  would  avoid  incurring  its  ill  will  and,  perhaps,  the  loss 
of  its  commerce.  It  would  free  it  also  from  the  risk  of  complications 
with  neutral  powers. 

"Secondly,  the  recognition  of  this  principle  would  be  a  genuine 
relief  to  neutrals;  for  blockades  and  hostilities,  by  arresting  all 
traffic,  are  a  serious  menace  to  their  foreign  commerce. 

"Thirdly,  debtor  states  would  be  benefited  by  it;  for  it  would  pre- 
vent lenders  of  money  from  counting,  as  a  basis  of  their  operations, 
on  anything  but  governmental  good  faith,  national  credit,  the  justice 
of  local  tribunals,  and  the  economy  pertaining  to  the  administration  of 
public  affairs.  It  would  deliver  these  states  from  the  importunities 
of  adventurous  speculators  who  tempt  them  by  the  offer  of  great  loans, 
which  are  often  the  prelude  to  national  extravagance,  and  finally 
threaten  to  seize  their  property  and  violate  their  sovereignty.  The 
certainty  that  all  disputed  pecuniary  claims  would  be  submitted  to 
the  valuation  of  an  impartial  tribunal  would  be  calculated  to  make 
great  financiers,  great  promoters,  understand  that  their  claims  would 
be  promptly  passed  upon,  without  serious  difficulty  in  the  country's 
administration  of  its  public  affairs,  and  without  their  being  personally 
obliged  to  assume  the  task  of  inducing  their  own  government  to  charge 
itself  with  collecting  their  dues  by  force  of  arms.  Under  such  condi- 
tions, foreign  financiers  and  financial  establishments,  supplied  with 


358  THE  TWO   HAGUE   CONFERENCES 

every  guarantee,  would  be  more  disposed  to  negotiate  loans,  and  would 
make  easy  and  reasonable  terms.  .  .  . 

"One  of  the  significant  features  of  this  conference  is  the  fact  that, 
for  the  first  time  in  history,  the  creditor  and  debtor  nations  of  the 
world  have  come  together  in  friendly  counsel.  The  occasion  seems, 
then,  to  be  the  most  auspicious  possible  for  a  serious  effort  to  come  to 
an  agreement  on  some  regulations  as  to  the  treatment  of  contractual 
debts,  —  regulations  which,  having  received  the  approval  of  this 
assembly,  may  form  a  general  treaty  on  the  subject  between  the  nations 
here  represented,  for  the  true  interests  and  peace  of  the  world." 

The  project  thus  ably  launched  did  finally  reach  the 
haven  of  a  general  treaty  adopted  by  the  conference;  but 
its  voyage  was  a  long  and  somewhat  stormy  one.  At  least 
ten  threatening  dangers,  in  the  shape  of  opposing  argu- 
ments, had  to  be  passed  through  or  avoided.  These  dan- 
gers loomed  up  both  in  the  subcommission,  the  committee 
of  examination,  the  commission,  and  the  plenary  session 
of  the  conference ;  and  it  was  only  by  persistent,  diplomatic, 
and  fearless  skill  that  success  was  finally  achieved.  While 
the  conference  was  almost  unanimous  in  indorsing  the  prin- 
ciple of  the  proposition,  its  opponents  on  the  one  side  claimed 
that  it  went  too  far,  and  its  opponents  on  the  other  side 
claimed  that  it  did  not  go  nearly  far  enough.  The  latter 
class  were  the  more  numerous,  and  among  them  were  most 
of  the  American  republics. 

Dr.  Drago,  of  Argentina,  to  whom  General  Porter  had 
gracefully  referred,  expounded  the  well-known  "Drago 
Doctrine"  in  a  statesmanlike  and  careful  address.  The 
three  objections  which  he  urged  to  the  "Porter  Proposi- 
tion" were,  first,  that  it  did  not  restrict  the  arbitration  of 
debts  arising  from  ordinary  contracts  solely  to  those  cases 
in  which  the  courts  of  the  debtor  country  had  been  pre- 
viously appealed  to  and  had  refused  justice;  second,  that 


ARBITRATION 


359 


it  seemed  to  include  public  debts  as  subject  to  arbitration ; 
and,  third,  that  it  did  not  absolutely  exclude  military 
aggression,  or  the  occupation  of  American  soil,  as  the  result 
of  disputes  in  regard  to  public  debts. 

The  first  of  these  objections  was  adhered  to  by  the  rep- 
resentatives of  Mexico,  Venezuela,  Uruguay,  Nicaragua, 
Paraguay,  Peru,  Ecuador,  Guatemala,  and  Switzerland. 
It  was  supported  by  Dr.  Drago  on  the  ground  that  "No 
real  difficulty  exists  [in  exhausting  local  means  of  collect- 
ing debts,  before  proceeding  with  diplomatic  measures], 
because  there  are  everywhere  tribunals  or  courts  of  claims 
with  the  jurisdiction  necessary  to  take  cognizance  of  this 
class  of  disputes.  In  the  Argentine  Republic,  as  well  as 
in  most  of  the  South  American  states,  the  government  can 
be  made  party  to  a  suit  without  the  necessity  of  obtaining  its 
previous  consent.  In  this  respect  we  have  gone  farther 
than  the  United  States,  which  is  inspired  by  the  principles 
proclaimed  by  Hamilton,  one  of  the  authors  of  the  Federal- 
ist, according  to  whom  the  nation  can  not,  any  more  than 
the  states  which  form  it,  be  summoned  before  the  courts 
(Chapter  81)."  "The  fact  that  one  state  can  not  intervene 
in  the  affairsof  another  state,"  said  M.  LaBarra,of  Mexico, 
"unless  it  be  under  the  exceptional  circumstances  deter- 
mined by  international  law,  is  a  natural  consequence  of 
the  sovereignty  and  independence  of  states."  "The 
states  of  Europe,"  said  M.  Castro,  of  Uruguay,  "should 
not  apply  to  America  other  rules  of  conduct  than  those  of 
international  law,  which  regulates  their  relations  with  each 
other.  America  has  a  good  right  to  such  treatment,  for 
it  is  entirely  civilized."  "When  a  government  dealing 
with  foreigners,"  said  M.  Candamo,  of  Peru,  "has  specified 
in  the  contract  that  differences  which  may  arise  shall  be 


360  THE  TWO   HAGUE   CONFERENCES 

settled  by  the  judges  and  tribunals  of  the  country,  it  is  be- 
fore them  that  the  affair  must  necessarily  be  brought." 

Dr.  Drago's  second  objection  to  the  Porter  Proposition 
was  adhered  to  by  the  representatives  of  Uruguay,  Nicara- 
gua, Colombia,  Paraguay,  Peru,  Guatemala,  and  Servia. 
It  was  supported  by  Dr.  Drago  for  the  reason  that  public 
debts  are  very  different  from  other  classes  of  indebtedness 
and  should  not  be  treated  like  them  in  being  subjected  to 
arbitration.  "They  are  put  into  circulation,"  he  said, 
"by  virtue  of  legislative  authorization  which  proceeds  di- 
rectly from  national  sovereignty  and  is  inseparable  from  it. 
The  issue  of  bonds  or  public  funds,  like  that  of  money,  is 
in  fact  a  positive  manifestation  of  sovereignty.  It  is  by 
an  act  of  sovereignty  that  a  state  ordains  the  payment  of 
coupons  on  maturity,  and  it  is  quite  obvious  that  it  is  by 
an  act  of  the  same  character  that  it  determines,  in  some 
exceptional  cases,  the  suspension  of  the  payment  of  the 
debt.  On  the  other  hand,  there  is  no  individual  creditor 
who  has  contracted  directly  with  the  government ;  it  is  an 
indistinct,  unnamed  person,  who  acquired  its  certificates 
at  their  actual  market  value,  which  is  more  or  less  variable ; 
but  the  certificates  bear  always,  from  the  beginning,  their 
risks  and  their  certainties,  which  are  perfectly  indicated 
by  their  quotation.  ...  It  is  certainly  a  fact  that,  though 
the  juristic  distinction  between  ordinary  contracts  and  cer- 
tificates constituting  the  public  debt  were  not  clearly  estab- 
lished, as  it  is,  from  the  point  of  view  of  principles,  we  may 
always  arrive  at  this  conclusion  in  a  practical  manner, 
since  everywhere  tribunals  exist  for  the  first  class,  while 
there  are  nowhere  any  to  adjudicate  the  second  class." 
The  representatives  of  the  other  South  American  states 
mentioned  above  did  not  attempt  to  argue  this  phase  of  the 


ARBITRATION  361 

Drago  Doctrine,  but  contented  themselves  with  express- 
ing their  acceptance  of  it.  M.  Ruy  Barbosa,  of  Brazil, 
on  the  other  hand,  in  a  very  learned  and  ample  address, 
frankly  rejected,  for  himself  and  for  every  thinker  and  pub- 
licist in  Brazil,  the  Drago  Doctrine  in  its  entirety.  He 
attacked  the  heart  of  the  doctrine  by  denying  that  the 
sovereignty  of  a  state  is  a  legitimate  barrier  to  compelling 
it  to  pay  its  bonded  indebtedness. 

That  sovereignty  which  in  the  United  States,  Dr.  Drago 
said,  had  been  made  impeccable,  M.  Barbosa  declared  has 
been  restricted  by  the  federal  courts. 

"The  most  original  and  the  most  commendable  trait  of  the  United 
States  Constitution,"  said  the  latter,  "...  is  that  justice  has  been 
placed  as  a  sacred  limit  and  impassable  barrier  to  sovereignty.  .  .  . 
What  is  it,  then,  which  is  lacking  in  sovereignty  to  place  it,  in  the 
domain  of  justice,  on  the  same  plane  as  individuals,  in  this  matter 
of  civil  obligations?  Solely  the  seizability  of  its  goods.1  ...  It  is 
the  first  time  that  between  nation  and  nation,  between  sovereignty  and 
sovereignty,  an  appeal  has  been  made  to  the  internal,  domestic  rule  of 
the  nonscizability  of  the  state's  goods,  to  establish  the  illegitimacy  of 
war.  War  is  never  considered  unjust  because  the  patrimony  of  a 
sovereignty  is  inaccessible  to  military  seizure ;  what  makes  wars  un- 
just, is  the  injustice  of  their  motives.  ...  In  this  system,  then,  a 
government's  certificate  would  not  be  a  juristic  agreement,  but  an  act 
of  confidence.  .  .  .  But,  truly,  the  theory  once  consolidated  in  law 
that  states  in  borrowing  contract  no  coercitive  obligation  whatever, 
that  is  to  say,  that  their  creditors  are  entirely  disarmed  towards  them, 
can  any  one  believe  that  there  would  still  be  capitalists  foolish 
enough  to  intrust  their  wealth  to  such  privileged  beings?  .  .  .  This 
theory  is  not  the  theory  of  the  right  of  sovereignty;  it  is  the  theory 
of  the  abuse  of  sovereignty.  Applied  in  the  internal  affairs  of  states,- 
it  would  nullify  the  organization  of  justice,  even  as  it  would  destroy 
it  if  admitted  to  international  dealings.  .  .  .     This  is  why,  gentle- 

1  M.  Barbosa  said  that  in  Brazil,  unlike  the  case  in  the  United  States, 
the  government  can  be  summoned  to  court  and  proceeded  against. 


362  THE  TWO  HAGUE   CONFERENCES 

men,  we  have  not  subscribed,  and  do  not  subscribe  to  this  doctrine. 
In  the  juristic  field,  it  seems  to  us  seriously  questionable.  In  the 
humanitarian  field,  it  could  not  wholly  exclude  the  sanction  of  force- 
In  the  political  field,  by  making  a  high  appeal  to  the  Monroe  Doctrine, 
it  would  compromise  that  doctrine;  because,  on  the  one  hand,  it 
would  draw  upon  it  the  antipathy  of  the  world,  and,  on  the  other,  it 
would  place  upon  it  crushing  responsibilities." 

No  one  attempted  to  answer  this  reasoning  of  M.  Bar- 
bosa  concerning  a  state's  bonded  indebtedness ;  but  Argen- 
tina and  her  adherents  still  insisted  that  the  Porter  Prop- 
osition should  not  apply  to  such  indebtedness,  and  Dr. 
Drago,  and  M.  Milovanovitch,  of  Servia,  endeavored  in  the 
committee  of  examination  to  induce  General  Porter  so  to 
define  " contractual  debts"  as  to  exclude  the  debts  of  a  state 
itself.  General  Porter  declared,  however,  that  it  was  not 
within  his  competence  to  enter  into  definitions  which  it 
would  be  almost  impossible  to  formulate,  and  the  proposi- 
tion was  adopted  with  the  much-disputed  term  unde- 
fined. 

As  an  offset  to  Dr.  Drago's  contention  that  the  Porter 
Proposition  should  be  restricted,  so  as,  to  exclude  public 
debts  from  arbitration,  M.  Matte,  of  Chili,  objected  to  the 
proposition  because  it  was  restricted  only  to  disputes  aris- 
ing from  contractual  debts  and  did  not  include  all  kinds 
of  pecuniary  disputes.  He  referred  to  the  Treaty  of  Mexico, 
which  was  signed  January  30,  1902,  by  seventeen  American 
states  and  provided  for  the  submission  to  arbitration  of 
"all  claims  for  damages  and  interest  of  a  pecuniary  kind," 
and  said  that  Chili's  delegation  would  take  one  step 
farther  and  propose  obligatory  arbitration,  not  only  for 
all  claims  for  damages  and  interest  of  a  pecuniary  kind,  but 
also  for  those  which  arise  from  pretended  infractions  of 
contracts.     It  was  apparent  that  this  step  was  too  long  for 


ARBITRATION  363 

the  conference,  —  Chili's  proposition  was  not  discussed, 
and  its  delegation  accepted  the  Porter  Proposition  as  the 
utmost  that  could  be  gained. 

The  third  objection  stated  by  Dr.  Drago,  and  supported 
by  the  representatives  of  Venzuela,  Dominica,  Nicaragua, 
Paraguay,  Colombia,  Bolivia,  Sweden,  Greece,  and  Servia, 
was  that  the  Porter  Proposition  admitted  the  use  of  force 
after  the  failure  of  arbitration.  Dr.  Drago  acquiesced  in 
the  use  of  force  after  the  failure  of  arbitration  in  the  case 
of  ordinary  contractual  debts;  but  he  opposed  both  "mili- 
tary aggression  and  the  material  occupation  of  American 
soil"  under  any  circumstances  in  the  case  of  public 
bonded  indebtedness.     His  argument  was  : 

"War  is  not  justifiable  in  the  absence  of  causes  sufficient  to  en- 
danger or  to  affect  profoundly  a  nation's  destiny,  and  among  these 
causes  can  never  be  placed  the  nonpayment  of  bond  coupons  to 
their  eventual  holders.  ...  By  accepting  that  part  of  the  proposi- 
tion of  the  United  States  which  makes  appeal  to  force  for  the  execu- 
tion of  disregarded  arbitral  sentences  [in  the  case  of  bonded  public 
debts],  we  should  take  a  long  step  backward,  we  should  recognize  war 
as  an  ordinary  resort  of  law,  we  should  establish  one  more  case  of 
lawful  warfare:  a  thing  which  would  surely  be  a  contradiction  in  a 
Peace  Conference  which  has,  as  the  very  object  of  its  existence,  the 
prevention  of  the  causes  of  war,  or  at  least  their  diminution." 

As  to  the  use  of  war  as  a  last  resort  in  the  case  of  ordinary 
contractual  debts,  Dr.  Drago  said  : 

"The  denial  of  justice  established  by  arbitration  constitutes  a 
common  offense  in  international  law,  and  must  give  occasion  for 
reparation.  A  denial  of  justice,  like  an  act  of  piracy,  is  a  fact  which 
destroys  the  equilibrium  of  the  world  community  and  endangers  that 
community  itself,  and  because  of  that  very  fact  it  falls  within  the  imme- 
diate domain  of  the  international  repression  which  is  foreseen,  ac- 
cepted, and  made  applicable  by  the  general  consensus  of  all  nations." 


364  THE  TWO   HAGUE   CONFERENCES 

But  the  other  delegations  which  accepted  Dr.  Drago's 
argument  against  war  as  a  last  resort  in  the  case  of  public 
bonded  indebtedness  did  not  indorse  his  admission  of  war 
as  a  last  resort  in  the  case  of  other  contractual  debts. 
M.  Perez  Triana,  of  Colombia,  made  the  most  extended 
and  the  most  ardent  address  against  the  admission  of  war 
in  any  case  of  pecuniary  dispute  and  under  any  circum- 
stances. 

"The  collection  of  debts  by  force,"  he  said,  "necessarily  interests 
the  countries  of  Latin  America  whose  territory  is  vast  and  the  exploi- 
tation of  whose  natural  wealth  will  continue  to  demand  in  the  future, 
as  it  has  done  in  the  past,  capital  which  must  be  sought  for  abroad  and 
which  will  be  secured  in  many  cases  either  directly  by  the  governments 
of  the  respective  countries,  or  with  their  guarantee. 

"The  principle  of  collection  by  force  can  be  applied  only  when 
the  creditor  is  strong  and  the  debtor  is  weak.  When,  as  can  very  well 
be  the  case,  a  creditor  is  weak  in  military  resources  as  compared  with 
a  great  military  power  which  can  not  pay  its  debts,  the  right  of  forcible 
collection  would  become  ridiculous. 

"In  the  case  of  debtor  nations,  it  is  possible  that  in  spite  of  the 
greatest  prudence,  the  government  may  find  itself  wholly  unable  to 
meet  its  financial  obligations.  This  may  arise  from  internal  revolu- 
tions, from  international  wars,  from  the  cataclysms  of  nature,  which 
destroy  in  an  incalculable  manner  the  public  revenues;  it  may 
arise  from  bad  harvests  during  several  successive  years,  or  the  sus- 
tained and  ruinous  fall  in  prices  of  national  products.  All  this  is 
of  exceptional  gravity  in  new  countries  which,  unlike  the  old  coun- 
tries of  Europe,  do  not  possess  the  wealth  accumulated  for  centuries. 

"...  The  state  finding  itself,  then,  in  the  situation  described  will 
be  attacked  by  the  naval  and  military  forces  of  its  creditor,  and  a  war 
will  commence  in  which  the  debtor  state  shall  have  been  already  con- 
demned in  advance  before  the  conscience  of  the  world,  as  the  author 
of  a  war  unjustifiable  according  to  its  own  declaration. 

"...  The  decision  rendered  by  the  arbitral  court  can  neither 
change  the  situation  of  the  debtor  country  nor  augment  its  resources. 
Yet,  according  to  this  decision,  the  debtor  country,  being  unable  to 


ARBITRATION  365 

pay  its  debts,  must  endure  the  armed  aggression  of  the  creditor,  who 
can  bombard  its  forts  and  invade  its  territory.  And  still  the  blows 
will  not  fall  on  the  guilty  or  the  responsible,  but  on  innocent  victims 
who  must  bear  the  burden  of  all  the  faults  or  errors  of  those  who 
govern  them.  This  indirect  method  of  collecting  debts  partakes  of 
the  methods  of  the  Inquisition ;  it  is  no  more  acceptable,  morally, 
than  the  application  of  torment  to  wring  confessions  of  guilt  from 
innocent  lips. 

"I  understand  perfectly  that  these  ideas  are  very  different  from 
those  of  creditors.  But  each  one  of  us  speaks  here  from  his  own  point 
of  view,  and  with  his  own  arguments.  The  spirit  of  Shylock  is  still 
almost  all  powerful  in  our  modern  civilization.  Once,  the  insolvent 
debtor  could  be  sold  as  a  slave  or  imprisoned  at  will.  We  have  pro- 
gressed a  little ;  but  Shylock  will  always  continue  to  demand  his  pound 
of  flesh  and  to  take  it  whenever  he  can.  It  is  his  role.  Now,  as  M. 
de  Brunetiere  said,  I  do  not  accuse,  I  affirm.  In  the  case  of  an  indi- 
vidual creditor,  the  debtor  can  expect  some  distant  ray  of  human 
charity.  But  the  collective  creditor  is  pitiless;  the  sentiment  of 
humanity  is  lost  in  the  collective  soul,  as  smoke  is  in  space :  crowds, 
like  water,  seek  and  find  their  lowest  level. 

"If  a  man  loses  his  wealth  without  having  had  it  insured,  by  ship- 
wreck, fire,  or  the  failure  of  a  corporation,  he  must  be  resigned;  but 
here  is  a  demand,  on  behalf  of  the  creditor  finding  himself  before  a 
state  which  has  no  means  of  paying  him,  for  a  recourse  to  force 
which  will  increase  with  bloody  violence  the  distress  of  the  debtor 
state. 

"...  The  establishment  of  a  recourse  to  force  entails  a  new  dan- 
ger to  the  world's  peace.  Adventurous  financiers  in  league  with  ava- 
ricious governments  will  constitute  a  dangerous  household ;  the  cour- 
tiers can  say  to  their  client,  'This  claim  is  quite  safe,  we  have  the 
navy  and  army  at  our  service  for  assuring  its  payment.' 

"It  is  the  appeal  to  force  that  we  reject.  You  ask,  'What  shall 
be  done?'  I  reply,  'If  you  can  not  solve  the  problem  satisfactorily 
and  justly,  let  things  take  their  course.'  It  must  be  remembered  that 
nations  are,  so  to  speak,  immortal,  and  that  there  is  no  limit  of  pre- 
scription for  national  debts:  what  one  generation  does  not  pay,  is 
paid  by  the  next.  This  Peace  Conference,  despite  the  good  will  of 
all  its  members  and  the  undoubted  ability  of  the  illustrious  men  who 


366  THE  TWO   HAGUE   CONFERENCES 

preside  over  its  deliberations,  can  not  work  miracles ;  and  it  would  be 
a  miracle  to  insure  international  creditors  against  all  possibilities  of 
loss.  And,  I  venture  to  say,  it  would  not  be  a  miracle,  but  a  great 
error  to  place  in  the  hands  of  financiers  —  some  of  whom  are  not 
angels  —  the  means  of  promoting  wars,  more  or  less  avowedly  im- 
perialistic in  their  tendencies,  against  weak  nations.  From  such 
sparks  may  spring  conflagrations  of  incalculable  import. 

"I  must  not  conclude  without  adding  that  Colombia,  my  country, 
has  a  well-established  credit,  that  its  revenues  are  visibly  increasing, 
and  that  Peace  reigns  over  it  without  cloud  or  shadow." 

M.  Ruy  Barbosa,  who  was  the  chief  exponent  of  the 
opposition  to  the  first  part  of  the  Drago  Doctrine,  at- 
tacked also  both  its  second  part  and  the  Colombian 
extension  of  it. 

"Our  credit,  always  intact,"  he  said,  "is  a  structure  carefully 
erected,  and  we  do  not  wish  to  expose  it  to  the  attacks  of  malevolence 
which  is  as  watchful  in  dealings  between  nations  as  in  those  between 
individuals.  We  were,  we  are  debtors,  and  we  may  still  need  to  have 
recourse  to  foreign  markets  [for  our  bonds].  We  do  not  wish,  then, 
to  incur  the  suspicion  of  those  whom  we  have  so  often  found  ready 
to  cooperate  in  the  development  of  our  prosperity ;  for  God  has  per- 
mitted us  to  remain  unacquainted  with  usury,  and  never  to  meet  with 
that  ferocity  of  capital  against  which  pretense  of  defense  is  made. 
Our  creditors  have  been  intelligent  and  reasonable  co-workers  in 
our  progress. 

"...  Our  impression  as  to  this  matter  is  very  vivid.  We  fancy 
that  when  one  owes,  and  has  the  misfortune  to  be  unable  to  repay, 
he  may  not  simply  discard  his  embarrassments  with  impunity.  We 
believe  that  the  danger  and  the  fear  of  consequences  may  act,  some- 
times, as  a  healthy  check  upon  imprudent  borrowing. 

"...  It  has  been  thought  that  there  is  a  kind  of  legalization  of 
war  in  this  measure  proposed  to  the  Peace  Conference.  But  there  is 
not  the  least  legalization  in  it.  It  is  the  legal  admission  of  a  necessity 
which  can  not  be  destroyed.  .  .  .  The  American  formula,  if  it  were 
less  sincere,  might  be  silent  on  the  final  use  of  force  in  cases  of  dis- 
regarded arbitration.     But  the  difference  then  would  be  solely  that 


ARBITRATION  367 

there  would  have  to  be  read  into  the  text  what  is  now  expressed  in  it. 
For  it  is  quite  obvious  that,  even  though  only  the  stipulation,  pure  and 
simple,  of  obligatory  arbitration  is  expressed,  as  soon  as  this  is  evaded 
or  its  verdict  is  not  respected,  the  hypothesis  of  the  intervention  of 
arms  returns  as  the  only  possible  corrective  of  the  rejection  of  an  ar- 
bitral agreement  or  of  disobedience  to  its  award.  This  is  what  the 
ordinary  arbitral  agreement  passes  over  in  silence,  and  what  the 
American  proposition  affirms.  The  two  things  differ  only  in  appear- 
ance ;  one  is  more  clever,  the  other  more  frank. 

"It  is  sad  that  we  are  obliged  always  to  leave  war  behind  what  we 
do  for  peace.  But  so  long  as  war  exists  and  men  make  of  it  a  means 
of  reinstating  law,  we  know  not  how  to  prevent  the  melancholy  spec- 
tacle —  of  which  we  ourselves  are  necessarily  parts  —  of  consider- 
ing it  as  the  last  court  of  appeal  for  those  who,  while  believing  them- 
selves possessors  of  a  law,  or  having  an  arbitral  decision  in  their  favor, 
see  it  flouted  by  those  in  rebellion  against  measures  of  conciliation 
and  forms  of  justice.  .  .  .  Nothing  could  show  us  in  a  more  impres- 
sive manner  how  our  mission  is  circumscribed  by  the  essence  of  facts 
and  what  a  universe  of  impossibilities  is  opposed,  outside  of  certain 
limits,  to  our  most  ardent  wishes  and  our  most  heroic  efforts." 

M.  Milovanovitch  renewed  in  the  committee  of  exami- 
nation the  effort  to  strike  out  the  part  of  the  proposition 
which  refers  to  the  use  of  armed  force,  at  the  same  time 
admitting  that  a  recourse  to  violent  means  must  always 
be  understood  as  a  last  resort.  But  General  Porter  replied 
that  it  was  impossible  to  do  this,  and  that  from  what  he  had 
heard  from  the  jurisconsults,  the  substitution  of  the  appar- 
ently milder,  but  more  equivocal,  words  "coercive  meas- 
ures" would  be  defeated.  Sir  Edward  Fry,  of  Great  Brit- 
ain, also  said  that  the  term  "coercive  measures"  might  be 
equivocal,  since  it  is  employed  in  domestic  law  to  designate 
all  the  modes  of  execution  in  use  for  national  sentences. 

In  the  Porter  Proposition  as  first  presented,  no  reference 
was  made  to  the  use  of  force  in  case  the  debtor  state  makes 
"impossible  the  establishment  of  the  compromise"   (i.e. 


368  THE  TWO   HAGUE   CONFERENCES 

an  agreement  as  to  the  precise  question  to  be  arbitrated, 
the  time,  place,  and  mode  of  the  arbitration,  etc.).  When 
it  was  presented  to  the  subcommission  without  this  pro- 
viso, Count  Tornielli,  of  Italy,  while  expressing  his  strong 
desire  to  vote  for  the  proposition,  was  opposed  to  it  without 
such  proviso.  He  evidently  had  in  mind,  in  this  case  as 
well  as  in  other  cases  of  obligatory  arbitration,  the  fear 
lest  the  United  States  Senate  and  other  similar  bodies 
might  prevent  the  resort  to  arbitration  even  after  the  offer 
had  been  accepted.  Count  Tornielli  also  drew  the  infer- 
ence from  General  Porter's  speech  that  the  United  States 
was  unwilling  to  arbitrate  any  claims  for  pecuniary  dam- 
ages in  cases  where  the  State  courts  had  failed  to  award 
them  to  Italians  injured  in  American  cities.  His  objec- 
tions to  the  proposition  were  supported  by  the  representa- 
tives of  Japan,  Spain,  Norway,  Servia,  Bulgaria,  and  Persia. 
But  the  proviso  as  to  the  compromise  was  included  in  the 
amended  proposition,  and  General  Porter  stated  in  the 
committee  of  examination  that  "the  purpose  of  the  prop- 
osition is  not,  directly  or  by  implication,  to  attempt  to 
justify,  in  cases  of  debts  or  claims  of  any  kind,  any  procedure 
which  is  not  based  on  the  principle  of  the  settlement  of 
international  differences  by  arbitration,  of  which,  in  its 
widest  application,  the  United  States  of  America  is  to-day 
more  than  ever  a  sincere  advocate."  Thereupon  Count 
Tornielli  expressed  himself  as  entirely  satisfied,  and  with- 
drew his  objections ;  and  the  other  delegations,  objecting 
on  the  same  ground,  followed  his  example. 

On  the  other  hand  the  representatives  of  the  Dominican 
Republic  and  Haiti  objected  to  the  compromise  clause 
being  included  in  the  paragraph  recognizing  force  as  the 
last  resort,  and  based  their  objection  on  Article  53  of  the 


ARBITRATION  369 

Convention  of  1907  for  the  Peaceful  Settlement  of  Inter- 
national Differences  which  provides  that  the  Court  of 
Arbitration  shall  determine  the  compromise  in  case  the 
parties  in  dispute  are  agreed  that  it  should  do  so.  But 
this  objection  was  yielded  by  Haiti,  in  order  to  secure  the 
votes  of  the  delegations  making  the  directly  opposite 
objection;  while  the  Dominican  Republic  voted  for  the 
proposition  with  the  reservation  of  this  clause. 

In  reply  to  a  probable  objection  of  Professor  de  Martens, 
of  Russia,  General  Porter  stated  in  the  committee  that  the 
application  of  the  rule  was  intended  to  be  restricted  abso- 
lutely to  the  interventon  of  a  government  in  behalf  of  its 
citizens,  and  not  of  the  citizens  themselves. 

One  final  objection  was  urged  against  the  proposition 
by  the  representatives  of  Roumania,  Switzerland,  and  Tur- 
key in  regard  to  the  place  which  it  was  to  occupy  among 
the  acts  of  the  conference.  The  representatives  of  France 
and  Portugal  welcomed  the  proposition  for  the  expressed 
reason  that  it  was  a  shining  example  of  obligatory  arbitra- 
tion; the  representatives  of  Germany  and  Austria,  while 
supporting  the  proposition  throughout,  denied  that  they 
were  thus  advancing  the  cause  of  obligatory  arbitration. 
And  the  delegations  of  Roumania,  Switzerland,  and  Tur- 
key opposed  the  proposition  lest  it  should  be  placed  in  the 
Convention  for  the  Peaceful  Settlement  of  International 
Differences,  in  association  with  the  articles  referring  to 
arbitration,  and  thus  be  made  an  example  of  obligatory 
arbitration.  General  Porter  stated  his  entire  willingness, 
from  the  first,  however,  that  his  proposition  be  made  the 
subject  of  a  separate  convention,  and  this  plan  was 
adopted.  This  concession  resulted  in  Turkey's  voting  for 
the  proposition,  and  in  abstention  from  the  vote  on  the 


370  THE  TWO   HAGUE   CONFERENCES 

part  of  Roumania  and  Switzerland,  instead  of  their  nega- 
tive vote. 

Although  the  Porter  Proposition  had  to  run  this  long 
gauntlet  of  objections,  it  was  hailed  and  followed  through- 
out by  the  applause  of  many  of  the  delegations,  including 
those  of  the  large  and  "the  creditor  powers;  noteworthy 
among  these  were  Great  Britain,  France,  Germany,  Rus- 
sia, Austria,  and  Brazil.  Even  those  who  made  objections 
to  its  form  in  the  various  ways  noted  above,  had  many  and 
warm  words  of  praise  for  its  general  principle ;  and  in  the 
end  it  received  the  affirmative  vote  of  thirty-nine  delega- 
tions, while  those  of  Belgium,  Roumania,  Sweden,  Switzer- 
land, and  Venezuela  did  not  vote  against  it,  but  abstained 
from  voting  at  all.  It  should  be  noted,  however,  that  nine 
of  the  American  republics,  while  casting  an  affirmative 
vote  for  the  proposition  as  a  whole,  made  certain  reserva- 
tions as  to  its  interpretation  or  application.  Eight  of  these, 
Argentina,  Colombia,  Ecuador,  Guatemala,  Nicaragua, 
Paraguay,  Peru,  and  Uruguay,  made  the  reservations  in- 
cluded in  the  Drago  Doctrine ;  and  the  Dominican 
Republic  adhered  to  its  reservation  in  regard  to  the  com- 
promise. 

D.     INTERNATIONAL   COURTS 

i.   The  Permanent  Court  of  Arbitration 

a.     The  Conference  of  i8gg 

The  Russian  plans  for  the  peaceful  settlement  of  inter- 
national difficulties  included  proposals  in  regard  to  good 
offices  and  mediation,  international  commissions  of  in- 
quiry, obligatory  arbitration  in    certain  classes  of   cases, 


ARBITRATION  37  j 

and  a  code  of  arbitral  procedure ;  but  they  did  not  at  first 
include  a  plan  for  a  court  of  arbitration.  The  honor  and 
credit  of  proposing  this  famous  institution  belong  to  Sir 
Julian  Pauncefote,  of  Great  Britain,  who  made  the  propo- 
sition at  the  second  meeting  of  the  III  Commission,  on 
the  26th  of  May.  He  presented  his  plan  in  the  following 
short  address  : 

"  Permit  me,  Mr.  President,  to  inquire  if,  before  going  farther  into 
this  matter,  it  would  not  be  useful  and  suitable  to  sound  the  commis- 
sion on  the  question  which  in  my  opinion  is  the  most  important  of  all, 
that  is,  the  establishment  of  a  permanent  tribunal  of  international 
arbitration,  on  which  you  have  touched  in  your  discourse. 

"  Many  codes  of  arbitration  and  rules  of  procedure  have  been  drawn 
up,  but  the  procedure  has  been  regulated,  up  to  the  present,  by  the 
arbitrators  or  by  general  or  special  treaties.  Now,  it  seems  to  me, 
that  new  codes  and  rules  of  arbitration,  whatever  their  merit  may 
be,  do  not  much  advance  the  great  cause  which  has  called  us  to- 
gether. 

"  If  it  be  desired  to  take  a  step  in  advance,  I  am  of  opinion  that  it 
is  absolutely  necessary  to  organize  a  permanent  international  tribunal 
which  could  assemble  immediately  on  the  request  of  the  nations  in 
dispute.  This  principle  once  established,  I  believe  that  we  shall  not 
have  much  difficulty  in  agreeing  upon  details.  The  necessity  of  such 
a  tribunal  and  the  advantages  which  it  would  offer,  as  well  as  the 
encouragement  and  even  the  strong  impulse  which  it  would  give  to 
the  cause  of  arbitration,  has  been  shown  with  as  much  eloquence  as 
force  and  clearness  by  our  distinguished  colleague,  M.  Descamps, 
in  his  interesting  '  Essay  on  Arbitration,'  an  extract  from  which  is 
to  be  found  among  the  '  Acts  and  Documents '  so  graciously  supplied 
to  the  conference  by  the  Netherlands  government.  Nothing  more 
remains  for  me  to  say,  then,  upon  this  subject;  and  I  shall  much  ap- 
preciate it,  Mr.  President  if,  before  proceeding  further,  you  would 
consent  to  draw  out  the  thoughts  and  feelings  of  the  commission  on 
the  proposition  which  I  have  the  honor  to  submit  to  you  regarding 
the  establishment  of  a  permanent  tribunal  of  international  arbitra- 
tion." 


372  THE  TWO   HAGUE   CONFERENCES 

The  great  idea  contained  in  this  short  and  simple  speech, 
like  many  another  great  idea  in  the  world's  history,  did 
not  meet  with  an  immediate  and  visible  response.  In  fact, 
it  met  first  with  an  objection,  on  the  part  of  two  members, 
that  it  should  not  be  allowed  to  displace  the  regular  order 
of  business !  But  before  the  end  of  the  meeting,  M.  de 
Staal  announced  that  the  Russian  delegation  also  had  a 
proposition  to  present  concerning  a  court  of  arbitration ; 
and  both  the  British  and  Russian  plans  were  referred  to  the 
committee  of  examination.1 

At  the  third  meeting  of  the  committee,  May  31,  Mr. 
Holls  presented,  on  behalf  of  the  United  States  delegation, 
a  plan  for  a  permanent  tribunal  of  arbitration;  but  both 
he  and  M.  de  Staal  agreed  that  Sir  Julian  Pauncefote's 
plan  should  be  taken  as  the  basis  of  the  committee's  discus- 
sion. This  discussion  occupied  seven  meetings,  held  at 
intervals  from  the  9th  of  June  to  the  18th  of  July;  and 
these  five  weeks  were  devoted,  not  only  to  discussion  within 
the  committee,  but  also  to  consultations  on  the  part  of 
members  of  the  whole  conference  with  each  other  and  with 
their  respective  governments,  and  to  one  important  diplo- 
matic mission  in  behalf  of  the  proposed  tribunal. 

The  preliminary  discussion  of  the  question  was  opened 
by  M.  Bourgeois,  of  France,  with  the  statement  that  his 
delegation  would  gladly  accept  the  proposition  for  a  per- 
manent tribunal,  on  the  twofold  guarantee,  first,  that  there 


1  This  very  important  committee  was  composed  of  the  following  members: 
Messrs.  Asser  of  the  Netherlands,  Descamps  of  Belgium,  D'Estournelles  of 
France,  Holls  of  the  United  States,  Lammasch  of  Austria,  De  Martens  of 
Russia,  Odier  of  Switzerland,  and  Zorn  of  Germany;  M.  Bourgeois  of  France 
presided  over  the  committee ;  Count  Nigra  of  Italy  and  Sir  Julian  Paunce- 
fote  of  Great  Britain  were  regular  and  active  attendants  on  its  meetings, 
and  various  other  delegates  were  sometimes  present. 


ARBITRATION  373 

should  be  entire  liberty  in  having  recourse  to  the  tribunal 
proposed,  or  to  any  other  method  of  arbitration ;  and,  sec- 
ond, that  there  should  be  entire  liberty  of  choice  among 
the  members  of  the  court  to  act  as  arbitrators  in  any 
given  case.  Sir  Julian  Pauncefote  followed  this  state- 
ment with  an  expression  of  appreciation  for  the  con- 
sideration shown  to  the  British  plan  and  for  the  Russian 
and  American  amendments  to  it.  Chevalier  Descamps, 
of  Belgium,  then  said  of  the  importance  of  the  proposed 
tribunal,  and  the  demand  for  it,  that  it  "  responds  to  the 
juristic  conscience  of  civilized  peoples,  to  the  progress 
achieved  in  national  life,  to  the  modern  development  of 
international  litigation,  and  to  the  need  which  compels 
states  in  our  days  to  seek  a  more  accessible  justice  in  a 
less  precarious  peace.  It  can  be  a  powerful  instrument 
in  strengthening  devotion  to  law  throughout  the  world. 
And  it  is  a  fact  of  capital  importance  that  three  projects 
of  this  kind  have  been  presented  by  three  great  powers. 
.  .  .  The  difficulties  which  the  realization  of  the  mag- 
nanimous views  of  the  Emperor  of  Russia  has  encountered 
in  other  fields  are  another  reason  for  us  to  urge  forward 
the  organization  of  mediation  and  arbitration.  We  must 
develop  and  consolidate  the  organic  institutions  of  peace. 
There  is  on  this  point  a  general  expectancy  in  every 
land,  and  the  conference  can  not,  without  serious  disad- 
vantages, disappoint  it.  The  proportions  which  we  shall 
give  to  the  work  that  we  are  about  to  undertake  will 
be,  without  doubt,  modest;  but  the  future  will  develop 
whatever  fertility  this  work  has  for  the  welfare  of  the 
nations  and  for  the  progress  of  humanity.  As  for  the 
delegates  to  this  conference  it  will  be,  without  doubt,  one 
of  the  greatest  joys  of  their  lives  to  have  cooperated  in 


374  THE   TW0   HAGUE   CONFERENCES 

the  achievement  of  this  great  result,  —  the  fraternal  ap- 
proach of  the  nations  and  the  stability  of  general  peace." 

Dr.  Zorn,  of  Germany,  then  took  the  floor  and  said  that 
he  had  listened  with  the  greatest  attention  and  with  a  pro- 
found emotion  to  the  above  declarations,  and  that  he  had 
recognized  the  solemnity  of  that  hour  when  the  represen- 
tatives of  the  civilized  states  had  spoken  on  one  of  the 
gravest  problems  which  could  be  discussed.  "For  my 
part,"  he  said,  "I  hope  that  the  day  will  come  when  the 
noble  desire  of  the  Emperor  of  Russia  can  be  wholly  ful- 
filled, and  when  differences  between  nations  shall  be 
brought,  for  the  most  part,  in  so  far  as  they  concern  neither 
vital  interests  nor  national  honor,  before  a  permanent 
international  tribunal.  But,  filled  though  I  am,  personally, 
with  this  hope,  I  can  not,  I  must  not,  surrender  myself  to 
illusions ;  and  such  is,  I  am  sure,  the  opinion  of  my  gov- 
ernment also.  .  .  .  The  German  government  can  not  pro- 
nounce upon  the  organization  of  a  permanent  tribunal, 
before  having  had  satisfactory  experience  with  an  occa- 
sional court  of  arbitration."  He  thereupon  moved  the 
previous  question,  which  was  the  Russian  proposition  as 
to  arbitral  procedure. 

To  remove  this  fatal  objection  on  the  threshold  of  the 
discussion  of  a  permanent  tribunal,  M.  Asser,  of  the 
Netherlands,  endeavored  to  convince  Dr.  Zorn  that  the 
necessary  experiments  in  occasional  arbitration  had  been 
satisfactorily  made,  and  that  those  which  yet  remained  to 
be  tried  were  precisely  those  which  the  proposed  plan  had 
in  view,  and  which  could  be  tried  in  no  other  way.  But 
Dr.  Zorn  adhered  to  his  motion,  for  the  reasons  that  a  per- 
manent tribunal  had  not  figured  in  the  original  Russian 
programme  submitted  to  the  powers,  and  that  "in  reality, 


ARBITRATION  375 

it  is  quite  probable  that  the  permanent  temporary  tribu- 
nal, as  it  has  been  called,  will  not  be  long  in  becoming 
altogether  permanent."  The  veteran  diplomacy,  of  Count 
Nigra,  of  Italy,  was  then  brought  into  play,  and  he  made  a 
direct  appeal  to  his  German  colleague  not  to  make  "too 
absolute  a  decision  on  a  question  which  interests  so  deeply 
all  mankind.  The  impatience,"  he  continued,  "with 
which  public  opinion  awaits  the  results  of  our  labors  has 
become  so  great  that  it  would  be  dangerous  to  renounce  the 
acceptance  of  an  arbitral  tribunal.  If  the  conference 
should  respond  to  that  impatience  with  a  non  possumus,  or 
insufficient  results,  the  disappointment  would  be  bitter. 
The  conference  would  incur,  in  such  case,  a  grave  respon- 
sibility towards  history,  towards  the  world,  and  towards 
the  Emperor  of  Russia."  Chevalier  Descamps  added  his 
persuasion  to  Count  Nigra 's,  and  Dr.  Zorn  consented  to 
withhold  a  categorical  refusal  for  a  time,  and  to  refer  the 
question  to  his  government. 

This  first  danger  temporarily  avoided,  Professor  de 
Martens,  of  Russia,  ontinued  the  general  discussion  of  the 
plan,  and  said  that  the  establishment  of  a  permanent  tri- 
bunal was  only  the  natural  development  of  Russia's  pro- 
posals as  to  arbitration  and  arbitral  procedure.  M.  Odier, 
of  Switzerland,  representing  the  smaller  powers,  said : 

"More  than  one  hope,  more  than  one  expectation,  of  arbitration 
has  dawned  on  the  world;  and  popular  opinion  has  the  conviction 
that  in  this  direction,  above  all,  important  steps  will  be  taken  by  the 
conference.  No  one  can  deny,  in  fact,  that  we  are  able  at  this  mo- 
ment to  take  a  new  and  decisive  step  in  the  path  of  progress.  Shall 
we  draw  back,  or  reduce  to  insignificant  proportions  the  importance 
of  the  innovation  expected  of  us  ?  If  so,  we  should  arouse  a  universal 
disappointment,  the  responsibility  for  which  would  press  heavily  upon 
us  and  our  governments." 


376  THE   TWO   HAGUE   CONFERENCES 

Professor  Lammasch,  of  Austria,  next  expressed  his  dele- 
gation's willingness  to  examine  the  Pauncefote  plan,  but 
its  determination,  at  the  same  time,  to  give  neither  direct 
nor  implied  indorsement  of  it. 

Finally,  Mr.  Holls  closed  the  discussion  by  the  following 
heartily  applauded  address : 

"I  have  listened  with  the  greatest  attention  to  the  important  ex- 
change of  opinion  which  has  just  taken  place  between  the  represen- 
tatives of  different  great  European  states.  It  has  seemed  proper 
to  me,  representing,  as  it  were,  a  new  power,  that  precedence  in  the 
discussion  should  naturally  be  given  to  the  delegates  of  the  older 
countries.  This  is  the  first  occasion  upon  which  the  United  States 
of  America  takes  part  under  circumstances  so  momentous  in  the  de- 
liberations of  the  states  of  Europe,  and  having  heard,  with  profound 
interest,  the  views  of  the  great  European  powers,  I  consider  it  my  duty 
to  my  government,  as  well  as  to  the  committee,  to  express  upon  this 
important  subject  the  views  of  the  government  of  the  United  Slates 
with  the  utmost  frankness.  I  join  most  sincerely  and  cordially  in  the 
requests  which  have  been  addressed  to  the  honorable  delegate  of  the 
German  Empire. 

"In  no  part  of  the  world  has  public  opinion  so  clearly  and  unmis- 
takably expressed  its  adherence  to  the  noble  sentiments  of  His  Maj- 
esty the  Emperor  of  Russia,  which  have  led  to  the  calling  of  this  con- 
ference, as  in  America,  both  North  and  South.  Nowhere  do  more 
sincere  wishes,  hopes,  and  prayers  ascend  to  heaven  for  the  success  of 
this  conference.  The  delegation  of  the  United  States  of  America 
has  received  hundreds  of  expressions  of  sympathy  and  support,  not 
only  from  the  United  States,  but  from  the  entire  American  continent ; 
and  these  manifestations  come,  not  only  from  individuals,  but  from 
secular  organizations  of  the  highest  standing  and  the  widest  influ- 
ence, and  from  great  and  powerful  churches  —  some  of  them  repre- 
senting millions  of  members.  In  consequence,  we,  the  members  of 
this  conference,  are  bound,  so  to  speak,  by  a  most  solemn  moral 
obligation,  incurred,  not  between  the  governments,  but  between  the 
peoples  of  the  civilized  world.  As  it  was  most  fittingly  expressed  in  a 
great  national  crisis  of  my  own  country  by  its  greatest  modern  states- 


ARBITRATION  377 

man,  Abraham  Lincoln,  'We  can  not  escape  history.'  We,  of  this 
conference  and  of  this  committee,  will  be  remembered  in  spite 
of  ourselves  —  no  personal  significance  or  insignificance  can  spare 
one  or  another  of  us. 

"Let  me  ask  the  honorable  members  of  this  committee  to  approach 
the  question  before  us  in  a  practical  spirit,  such  as  is  generally  attrib- 
uted to  us  Americans;  let  us  observe  the  true  state  of  public  opinion. 
Public  opinion,  all  over  the  world,  is  not  only  eagerly  hoping  for  our 
success,  but  it  should  be  added  that  it  has  become  uneasy  and  anxious 
about  it.  The  powers  of  unrest  and  discord  are  even  now  exulting 
over  what  they  hope  will  prove  to  be  our  ignominious  failure. 

"On  the  other  hand,  the  fear  is  abroad,  most  unmistakably,  even 
among  our  friends  and  well-wishers,  that  by  reason  of  conflicting 
interests  of  a  political  nature,  or  for  other  causes  which  can  not  be  dis- 
cussed openly,  the  results  of  this  conference  may  turn  out  to  be  purely 
platonic,  inadequate,  unsatisfactory,  perhaps  even  farcical;  and, 
moreover,  it  should  be  clearly  recognized  and  remembered  that  public 
anxiety  on  this  point  is  based  upon  recent  experience  in  a  case  pre- 
senting many  analogies  to  the  situation  before  us.  A  conference  was 
called  not  many  years  ago  upon  the  noble  and  generous  initiative 
of  His  Majesty  the  German  Emperor,  upon  a  subject  profoundly 
interesting  to  mankind;  namely,  the  protection  of  the  interests  of 
labor;  and  it  met  at  Berlin,  having  a  most  distinguished  and  repre- 
sentative membership.  But  what  was  the  result?  Resolutions  of  a 
purely  academic  character  were  adopted,  and  that  conference  is 
even  now  almost  forgotten. 

"Civilized,  educated,  progressive  public  opinion,  which  is  beyond 
all  question  the  most  potent  and  the  one  irresistible  moral  influence  in 
the  world  to-day,  remembering  former  failures,  will  not  pardon 
us  if  we  offer  it  a  new  acute  rebuff,  and  the  very  hopes  which  are  now 
concentrated  upon  us  and  our  work  will  be  the  measure  of  the  disap- 
pointment which  would  follow  our  failure.  Moreover,  the  estab 
lishment  of  a  permanent  international  court  is  the  one  great  success 
which  is  hoped  for,  not  only  as  being  brilliant  and  striking,  but  also 
as  being  attainable,  —  in  fact,  within  our  very  grasp.  Without  doubt 
the  honorable  delegate  from  the  German  Empire  is  correct,  when  he 
regards  even  the  Russian  project  [of  mediation  and  arbitral  procedure] 
as  a  decided  step  in  advance  over  the  present  condition  of  affairs 


378  THE   TWO   HAGUE   CONFERENCES 

as  regards  arbitration;  but  from  the  point  of  view  of  the  practical 
man  —  the  point  of  view  of  efficient  and  critical  public  opinion  all 
over  the  world  —  I  venture  to  say  most  emphatically  that  we  shall 
have  done  nothing  whatever  if  we  separate  without  having  estab- 
lished a  permanent  tribunal  of  arbitration."  1 

Under  the  stimulus  of  these  earnest  preliminary  ad- 
dresses, the  committee  took  up  the  discussion  of  the  articles 
proposed  for  the  establishment  of  the  tribunal,  with  those 
of  Sir  Julian  Pauncefote  as  a  basis. 

The  name  given  to  the  new  institution  was  the  Perma- 
nent Court  of  Arbitration,  and  the  first  article  2  concerning 
it  contained  the  following  statement :  With  the  object  of 
facilitating  an  immediate  recourse  to  arbitration  for  inter- 
national differences  which  have  failed  to  be  settled  by  diplo- 
matic methods,  the  Signatory  Powers  agree  to  organize  a 
Permanent  Court  of  Arbitration,  accessible  at  all  times 
and  acting,  unless  otherwise  stipulated  by  the  parties,  in 
accordance  with  the  rules  of  procedure  included  in  the 
present  convention. 

The  only  debated  point  in  this  article  was  the  name 
given  to  the  new  institution.  Sir  Julian  Pauncefote  pro- 
posed the  name  of  Permanent  Tribunal  of  Arbitration ;  this 
seemed  rather  strong,  and  the  committee  at  first  adopted 
the  word  Institution;  but  as  the  work  grew  beneath  their 
hands,  they  frankly  changed  it  for  Court.  Dr.  Zorn  ob- 
jected to  both  Tribunal  and  Court  as  giving  rise  to  illusions 
or  misunderstandings;  and  since,  as  he  remarked,  "there 
exists  only  a  list,  whose  members  enter  on  their  function 

1  This  translation  is  taken  from  Mr.  Holls's  own  book  on  the  first  con- 
ference. There  is  an  excellent  summary  of  the  address,  in  French,  in  the 
Proceedings  of  the  Conference,  Part  VI,  pages  20-21. 

2  This  is  Article  20,  in  Chapter  II,  Title  IV,  of  the  Convention  for  the 
Peaceful  Settlement  of  International  Differences. 


ARBITRATION 


379 


only  after  having  been  chosen  for  a  specific  case,"  he  sug- 
gested the  name  of  Permanent  List  of  Arbitrators.  Other 
members  of  the  committee  defended  the  word  Court,  Mr. 
Holls  saying  that  it  is  used  in  the  same  sense  for  the  Supreme 
Court  of  New  York,  whose  judges,  elected  by  different  dis- 
tricts, have  never  been  all  assembled  at  once;  and  Pro- 
fessor de  Martens  saying  that  the  term  adopted  corre- 
sponds with  the  usage  in  France,  England,  and  the  United 
States. 

The  competence  of  the  court  was  stated  as  follows: 
The  Permanent  Court  shall  be  competent  for  all  cases  of 
arbitration,  unless  there  shall  be  an  agreement  between  the 
parties  for  the  establishment  of  a  special  tribunal.  Count 
Macedo,  of  Portugal,  desirous  of  emphasizing  the  fact  that 
the  court  was  intended  to  be  the  regular  organ  of  arbitra- 
tion, and  tribunals  specially  established  for  individual 
cases  only  the  exception  to  the  rule,  proposed  an  amend- 
ment to  that  effect.  But  the  amendment  was  rejected  for 
the  express  reason  that  the  article  as  it  stood  emphasized 
the  regular  character  of  the  court.  The  committee  was 
unanimous  in  hoping  that  the  nations  would  recognize  the 
regularity  of  the  court  established  at  The  Hague  and  grow 
more  and  more  in  the  habit  of  resorting  to  it,  but  feared  to 
appear  to  exert  any  pressure  upon  them  to  select  it.  The 
competence  of  the  court  for  any  case  of  arbitration,  whether 
voluntary  or  obligatory,  and  the  liberty  left  to  the  powers 
to  select  it  or  some  other  tribunal,  were  believed  to  justify 
the  proud  term  applied  to  it,  "A  free  tribunal  in  the  midst 
of  independent  states." 

In  order  that  the  court  should  be  something  more  than 
a  list  of  judges  scattered  in  different  lands,  and  be  ready 
for  immediate  operation  when  called  upon,  the  British 


380  THE   TWO   HAGUE   CONFERENCES 

plan  proposed  the  establishment  of  a  bureau,  with  a  local 
habitation,  a  secretary,  and  other  officials,  and  with  definite 
tasks  to  perform.  It  left  the  place  of  its  establishment 
undetermined ;  but  the  committee  agreed  unanimously 
upon  The  Hague  as  its  seat,  and  M.  Asser,  on  behalf  of 
the  Netherlands  government,  expressed  appreciation  of  the 
honor  thus  conferred.  It  was  decided  not  to  provide  for  a 
secretary  or  otfher  officials  of  the  International  Bureau,  but 
to  leave  this  to  a  council,  provided  for  later;  but  Dr. 
Zorn  insisted  that  whatever  name  should  be  given  to  the 
head  of  the  bureau,  he  should  remain  a  secretary  in  fact, 
and  not  become  "a  center  of  international  government,  a 
kind  of  cosmopolitan  administrator."  The  duties  assigned 
to  the  bureau  are  :  to  serve  as  the  record  office  of  the  court ; 
to  be  the  medium  of  all  communications  relating  to  the 
meetings  of  the  court ;  to  have  custody  of  the  court's  ar- 
chives and  take  charge  of  all  its  administrative  affairs.  The 
signatory  powers,  on  their  part,  agreed  to  furnish  the  bureau 
with  a  certified  copy  of  every  treaty  of  arbitration  made  by 
them,  of  every  arbitral  award  concerning  them  rendered  by 
special  tribunals,  and  of  the  laws,  rules,  and  documents 
declaring  the  final  execution  of  the  judgments  rendered  by 
the  court.  By  these  provisions  it  was  intended  to  make 
The  Hague  a  rich  center  of  the  most  important  and  useful 
documents  relating  to  arbitration  tribunals,  both  general 
and  special.  Mr.  Holls  proposed  a  rule  providing  for  the 
publication  of  this  material ;  but  it  was  deemed  better  to 
leave  this  matter  in  the  hands  of  the  council  and  the  states 
concerned.  M.  Bourgeois  said,  in  accepting  the  proposed 
bureau,  that  he  believed  it  would  not  only  perform  the  use- 
ful tasks  directly  assigned  to  it,  but  would  be  a  visible  and 
respected  sign  constantly  recalling  to  the  minds  of  all 


ARBITRATION  381 

peoples  the  noble  conception  of  international  law  and 
peace. 

For  the  purpose  of  increasing  the  prestige  of  the  Inter- 
national Bureau,  of  keeping  the  powers  in  close  touch  with 
it  and  the  court,  and  thus  of  promoting  a  resort  to  arbi- 
tration, it  was  agreed  that  a  Permanent  Administrative 
Council  should  be  constituted  at  The  Hague  as  soon  as 
possible  after  the  ratification  of  the  convention  by  at  least 
nine  powers.  This  council  is  composed  of  the  diplomatic 
representatives  of  the  signatory  powers  accredited  to  The 
Hague,  with  the  Netherlands  minister  of  foreign  affairs 
acting  as  its  president.  It  was  at  first  proposed  that  the 
members  of  this  council  should  be  only  the  diplomatic 
representatives  resident  in  The  Hague ;  but  Baron  de  Bildt, 
of  Sweden  and  Norway,  objected  that  this  would  exclude 
ministers  who,  like  Sweden  and  Norway's,  are  accredited 
to  The  Hague,  but  who  reside  elsewhere,  —  at  Brussels 
or  Paris,  for  example.  It  was  therefore  agreed  to  substi- 
tute accredited  to  for  resident  in  The  Hague ;  but  it  was  also 
voted  that  the  diplomats  referred  to  should  have  all  their 
communications,  as  members  of  the  council,  addressed  to 
some  place  in  The  Hague. 

The  duties  assigned  to  the  Permanent  Administrative 
Council  are:  to  establish,  organize,  and  supervise  the  Inter- 
national Bureau,  with  entire  control  over  the  appointment, 
suspension,  or  dismissal  of  its  officials  and  employees,  over 
their  allowances  and  salaries,  and  overthe  general  expendi- 
ture; to  notify  the  powers  of  the  constitution  of  the 
Permanent  Court  and  to  provide  for  its  installation ;  and 
to  decide  all  questions  of  administration  which  may  arise 
in  connection  with  the  operations  of  the  court.  It  was 
given  the  right  to  make  its  own  by-laws  and  all  other 


382  THE   TWO   HAGUE   CONFERENCES 

necessary  regulations ;  but  it  was  provided  that  at  meetings 
duly  summoned  five  members  shall  constitute  a  quorum, 
and  that  all  decisions  shall  be  made  by  a  majority  of 
votes.  Count  Welsersheimb,  of  Austria,  objected  to  the 
council  that  it  was  given  a  liberty  of  action  equivalent  to  a 
kind  of  sovereignty,  and  proposed  that  its  decisions  should 
be  submitted  to  the  various  governments  for  ratification 
before  their  execution ;  but  the  reply  was  made  to  this  ob- 
jection and  proposal  that  the  duties  of  the  council  were 
purely  administrative  and  not  at  all  political  or  judicial, 
and  that  the  necessity  of  awaiting  governmental  ratifica- 
tion would  greatly  hinder  the  council's  work.  It  was 
agreed,  however,  that  the  council  should  communicate, 
without  delay,  to  each  signatory  power  the  by-laws  and 
regulations  adopted  by  it,  and  shall  address  to  them  an- 
nually a  report  of  the  proceedings  of  the  court,  of  the  ad- 
ministration of  the  council  and  bureau,  and  of  the  bureau's 
expenses.  It  was  further  provided  that  the  expenses  of 
the  bureau  shall  be  borne  by  the  signatory  powers  in  the 
proportion  established  for  the  International  Bureau  of  the 
Universal  Postal  Union.1  The  expenses  of  each  case  of 
arbitration  will  be  spoken  of  later.2 

The  important  question  of  the  appointment  of  judges 
for  the  new  court  was  settled  with  but  relatively  little 
discussion.  Sir  Julian  Pauncefote  proposed  that  each 
signatory  power  should  appoint  two  judges ;  but  Dr.  Zorn 
advocated  the  increase  of  this  number  to  a  maximum  of 
four,  for  the  reason  that  it  would  enable  a  country  —  espe- 
cially a  large  country  —  to  select  men  from  the  ranks  of 

1  The  members  of  this  Union  are  grouped  in  classes  according  to  their  size 
and  presumptive  wealth,  and  the  members  of  each  class  bear  an  equal  share 
of  the  expenses  apportioned  to  that  class. 

2  Under  Arbitral  Procedure,  page  402. 


ARBITRATION  383 

diplomacy  and  the  army  or  navy  as  well  as  jurisconsults. 
Several  delegations  were  strongly  opposed  to  this  increase, 
for  the  reason  that  it  would  decrease  the  moral  authority 
of  the  court.  But  the  German  delegation  insisted  on  the 
increase,  and  the  larger  number  was  adopted  in  the  spirit 
of  conciliation,  and  with  the  consoling  reflection  that  a 
larger  number  of  judges  might  be  calculated  to  keep  the 
court  more  in  the  public  mind. 

The  United  States  delegation  urged  the  selection  of 
judges  by  the  highest  judicial  body  in  each  country,  in 
order  that  their  appointment  might  be  removed  from  po- 
litical influence  and  intrigue;  but  the  other  delegations 
were  opposed  to  this,  partly  because  of  the  uncertainty  as 
to  the  highest  judicial  body  in  some  countries  in  Europe, 
and  partly  because  they  were  opposed  to  investing  their 
judiciary  with  any  appointive  power.  The  rule  as  adopted 
merely  provides  that  "each  signatory  power  shall  select  not 
more  than  four  persons"  ;  but  in  order  to  secure  the  impar- 
tiality of  their  appointment  so  greatly  desired  by  the  Ameri- 
can delegation,  it  adds  the  words  "of  recognized  compe- 
tence in  questions  of  international  law,  enjoying  the  highest 
moral  reputation,  and  disposed  to  accept  the  duties  of 
arbitrators." 

The  bureau  is  to  communicate  the  list  of  judges  thus 
selected,  and  any  changes  in  it,  to  the  signatory  powers. 
Liberty  is  accorded  to  two  or  more  powers  to  unite  in  the 
selection  of  one  or  more  members  of  the  court;  and  the 
same  person  may  be  selected  by  different  powers.  The 
term  of  the  judges  is  limited  to  six  years,  but  their  appoint- 
ment may  be  renewed.  In  case  of  the  death  or  resigna- 
tion of  a  member  of  the  court,  his  place  shall  be  filled  in 
accordance  with  the  method  of  his  appointment. 


384  THE   TWO   HAGUE   CONFERENCES 

For  the  formation  of  the  arbitral  tribunal,  for  the  arbi- 
tration of  specific  cases,  it  was  readily  agreed  that  each 
party  to  the  dispute  should  choose  two  arbitrators  from  the 
list  of  members  of  the  Permanent  Court ;  but  the  question 
of  how  the  umpire,  or  sur-arbiter,  should  be  chosen  was 
one  of  considerable  difficulty.  One  suggestion  was  that 
the  umpire  should  be  chosen  from  the  list  of  judges  by  lot; 
but  this  was  opposed  on  the  ground  that  the  lot  might 
fall  upon  some  one  unsatisfactory  to  the  parties.  Pro- 
fessor Lammasch  then  proposed  that  the  choice  of  the 
umpire  should  be  left  to  the  neutralized  powers,  Bel- 
gium, Switzerland,  and  Luxemburg;  but  Mr.  Holls  ob- 
jected to  this  as  being  too  exclusively  European.  It  was 
finally  agreed  that  the  plan  adopted  for  commissioners  of 
inquiry  should  be  adopted  for  the  arbitration  tribunal  as 
well.  That  is,  that  the  arbitrators  chosen  by  the  parties 
shall  choose  the  umpire;  if  they  can  reach  no  agreement, 
the  choice  shall  be  left  to  a  third  power  selected  by  the 
parties ;  if  the  parties  can  not  agree  on  the  third  power,  each 
one  shall  select  a  power,  and  the  powers  so  selected  shall 
choose  the  umpire.  Baron  de  Bildt,  of  Sweden  and  Nor- 
way, advocated  the  amendment  that  the  parties  to  the  dis- 
pute should  be  given  the  right  of  confirming  or  rejecting 
the  umpire ;  but  as  indefinite  rejection  might  prevent 
arbitration,  and  confirmation  of  the  umpire  might  de- 
tract from  his  absolute  impartiality,  this  amendment  was 
not  adopted.  The  great  desirability  of  all  the  parties  to 
the  dispute  being  satisfied  with  the  umpire  was  strongly 
emphasized  in  the  discussion,  however,  and  it  was  generally 
considered  that  the  two  arbitrators  selected  by  each  party 
should  be  regarded  as  the  agents  of  the  parties  they  repre- 
sented in  the  choice  of  the  umpire,  and  thus  enable  the  par- 


ARBITRATION  385 

ties  to  exercise  an  influence  in  that  choice.  But  the  fact 
was  also  emphasized  that  from  the  moment  the  arbitration 
begins,  all  the  arbitrators  should  cease  to  be  agents,  and 
should  act  only  as  impartial  judges. 

It  should  be  noted  that  the  parties  in  dispute  are  left  at 
liberty  to  agree  upon  any  other  method  than  the  above 
of  selecting  the  members  of  the  arbitral  tribunal ;  but  if 
they  adopt  this  method,  the  arbitrators  selected  must  all 
be  members  of  the  Permanent  Court.  The  British  plan 
permitted  the  selection  of  other  arbitrators  than  those  on 
the  list ;  but  this  was  considered  to  be  derogatory  to  the 
prestige  of  the  court.  As  another  means  of  preserving  or 
increasing  the  court's  prestige,  it  was  agreed  that  the  mem- 
bers of  the  court,  while  in  the  discharge  of  their  duties, 
and  outside  of  their  own  country,  shall  enjoy  diplomatic 
privileges  and  immunities. 

The  tribunal  of  arbitration  being  constituted,  the  par- 
ties must  communicate  the  fact  to  the  bureau,  which  shall 
make  arrangements  for  the  meeting  of  the  tribunal  at  a  time 
agreed  upon  by  the  parties.  Its  usual  place  of  meeting 
shall  be  at  The  Hague ;  and,  except  in  cases  of  necessity, 
the  place  of  its  meeting  shall  be  changed  by  the  tribunal 
only  with  the  assent  of  the  parties. 

Sir  Julian  Pauncefote,  with  the  desire  of  having  the 
court  "utilized  to  the  utmost  possible  extent,"  proposed  an 
article  providing  that  the  International  Bureau  at  The 
Hague  be  authorized  to  put  its  offices  and  its  staff  at  the 
disposal  of  the  signatory  powers  for  the  performance  of  the 
duties  of  any  special  tribunal  of  arbitration.  Professor  de 
Martens  supported  this  proposition  in  the  hope  that  "The 
Hague  may  become  the  center  of  international  arbitrations, 
and  the  habit  be  contracted  of  taking  the  road  to  the  Perma- 


386  THE   TWO   HAGUE   CONFERENCES 

nent  Court."  This  proposition  was  unanimously  adopted, 
as  was  also  the  further  provision,  moved  by  Sir  Julian 
Pauncefote  and  supported  by  Professor  Renault,  of  France, 
that  the  jurisdiction  of  the  Permauent  Court  may  be  ex- 
tended, under  conditions  prescribed  by  its  rules,  to  contro- 
versies existing  between  nonsignatory  powers,  or  between 
signatory  powers  and  nonsignatory  powers,  if  the  parties 
agree  to  submit  to  its  jurisdiction.  It  will  be  observed  that 
this  article  does  not  extend  to  nonsignatory  powers  the  in- 
vitation to  make  use  of  the  International  Bureau  for  special 
tribunals  of  arbitration,  but  only  for  the  jurisdiction  of  the 
Permanent  Court.  As  an  additional  encouragement  to 
nonsignatory  powers  to  make  use  of  the  Permanent  Court, 
the  proposition  to  have  the  council  decide  on  the  fees  to  be 
charged  them  for  the  use  of  the  International  Bureau  was 
rejected,  and  Count  Nigra's  suggestion  was  adopted,  in 
accordance  with  which  nonsignatory  powers  may  utilize 
the  bureau  without  money  and  without  price. 

Sir  Julian  Pauncefote  also  desired  to  extend  the  facili- 
ties of  the  International  Bureau  to  international  commis- 
sions of  inquiry,  but  withdrew  his  motion  to  that  effect  in 
face  of  the  opposition  of  Professor  Zorn,  of  Germany. 

It  has  been  seen  that  in  the  preliminary  discussion  which 
preceded  the  committee's  first  reading  of  the  Pauncefote 
Plan  for  an  arbitral  court,  Germany's  anxiety  in  regard  to 
it  threatened  to  place  an  insuperable  obstacle  upon  its  very 
threshold,  but  that  Professor  Zorn's  instructed  opposition 
was  temporarily  postponed  until  he  could  have  an  oppor- 
tunity of  going  to  Berlin  to  consult  with  the  German  gov- 
ernment in  regard  to  the  details  of  the  plan.  After  the 
first  reading  of  the  plan,  the  committee  adjourned  for  nine 
days  to  afford  this  opportunity;    and  to  assist  Professor 


ARBITRATION  387 

Zorn  in  his  important  mission,  Count  Minister  and  Am- 
bassador White,  first  delegates  of  Germany  and  the  United 
States,  respectively,  suggested  that  Mr.  Holls  should  go 
with  him.  This  suggestion  was  cordially  approved  by  the 
rest  of  the  committee,  and  Mr.  Holls  gladly  consented.  His 
article  in  regard  to  special  mediation  had  been  peculiarly 
acceptable  to  German  ideals,  and  his  course  during  the 
debate  and  his  genial  personality  had  helped  to  make  him 
persona  grata  at  the  German  capital.  The  two  messengers 
carefully  explained  the  details  of  the  plan  to  Prince  von 
Hohcnlohe,  the  chancellor,  and  Count  von  Biilow,  the 
minister  of  foreign  affairs,  who,  after  communication 
with  the  Emperor,  absent  at  Kiel,  gave  Germany's  consent 
to  the  general  plan,  with  some  special  instructions  as  to 
details.  Accordingly,  when  the  committee  took  up  the 
second  reading  of  the  articles,  Professor  Zorn  was  able  to 
report,  much  to  his  own  and  the  committee's  gratification, 
that  his  government  "has  accepted  the  principle  of  this 
innovation  in  the  form  suggested  by  Sir  Julian  Paunce- 
fote,  and  solely  by  reason  of  the  latitude  which  it  leaves  to 
the  governments  to  select  their  arbitrators  from  a  list." 
He  stated  also  that  his  government  "recognizes  the  im- 
portance arid  grandeur  of  this  new  institution." 

b.    The  Conference  of  iqo? 

The  Conference  of  1907  agreed  unanimously  to  main- 
tain the  Permanent  Court  of  Arbitration,  "such  as  it  was 
established  by  the  first  Peace  Conference."  The  effort 
to  supplement  it  by  another  court  will  be  described  later; 
but  a  few  changes  in  regard  to  it  will  be  noted  here. 

Dr.  Kriege,  of  Germany,  referred  to  the  desirability  of 


388  THE   TWO    HAGUE   CONFERENCES 

having  the  povvers  send  promptly  to  the  International 
Bureau  reports  of  the  special  arbitrations  and  treaties 
entered  into  by  them,  and  proposed  to  add  to  the  agree- 
ment to  that  effect  the  words  "as  soon  as  possible."  This 
proposition  was  adopted.  M.  Fromageot,  of  France,  pro- 
posed also  that  the  bureau  be  authorized  to  send  out,  peri- 
odically, a  circular  letter  to  all  the  powers  to  remind  them 
of  this  agreement ;  but  Dr.  Kriege  objected  to  giving  the 
bureau  "the  right  of  reminding  the  powers  of  their  duty," 
and  this  proposition  was  rejected. 

The  filling  of  vacancies  in  the  court  gave  rise  to  the  ques- 
tion whether  the  vacancy  should  be  filled  by  the  selection 
of  a  new  member  to  serve  for  the  remainder  of  the  former 
member's  term,  or  for  a  new  period  of  six  years.  The 
latter  solution  of  the  question  was  adopted. 

The  choice  of  arbitrators  from  among  the  members  of 
the  Permanent  Court,  to  constitute  the  arbitral  tribunal, 
was  the  subject  of  two  amendments.  It  was  decided, 
first,  that  only  one  of  the  two  arbitrators  selected  by  each 
party  to  the  dispute  may  be  a  citizen  of  the  country  which 
selects  him  or  among  the  members  of  the  court  appointed 
by  it.  This  decision  was  in  line  with  the  suggestion  made 
by  the  United  States  delegation  in  1899,  when  Mr.  Holls 
moved  that  in  cases  where  the  tribunal  consisted  of  no  more 
than  three  members,  none  of  them  should  be  citizens  of  the 
countries  in  dispute.  He  based  his  motion  on  the  argu- 
ment that  when  two  of  the  three  arbitrators  were  citizens 
of  the  two  countries  in  dispute,  there  would  be  only  one 
genuine  and  impartial  judge.  His  motion  was  defeated, 
however,  on  the  ground  that,  while  it  is  an  axiom  of  civil 
law  that  no  one  can  be  a  judge  of  his  own  cause,  in  inter- 
national law  sovereign  and  independent  states  would  not 


ARBITRATION  389 

abdicate  their  sovereign  claim  to  be  represented  on  the 
tribunal  trying  their  cause.  The  system  of  having  two 
arbitrators  appointed  by  each  of  the  parties  was  adopted 
then,  as  an  intermediate  step  between  diplomatic  negotia- 
tions and  judicial  procedure.  In  1907  one  step  further 
was  taken  by  providing  that  only  one  of  the  five  possible 
arbitrators  should  be  a  citizen  of  each  of  the  countries  at 
variance. 

The  second  amendment  to  the  method  of  choosing  arbi- 
trators had  to  do  with  the  choice  of  the  umpire,  or  sur- 
arbiter.  The  plan  adopted  in  1899  did  not  provide  for 
the  case  where  the  neutral  powers,  selected  by  the  parties 
in  dispute  to  choose  the  umpire,  can  not  agree  on  a  choice. 
This  omission  was  filled  in  1907  by  the  provision  that  if, 
after  a  delay  of  two  months,  the  neutral  powers  have  been 
unable  to  agree,  each  of  them  shall  present  two  candidates 
from  the  list  of  members  of  the  Permanent  Court,  — ■  the 
said  candidates  not  to  be  the  same  as  either  of  those  chosen 
by  the  countries  at  variance,  or  citizens  of  them;  it  shall 
then  be  determined  by  lot  which  of  the  candidates  thus 
presented  shall  be  the  umpire.  This  resort  to  lot  was 
proposed  by  the  German  delegation,  and  was  adopted  in 
default  of  a  better  one,  although  Professor  Lammasch,  of 
Austria,  objected  to  it  for  the  reason  that,  even  if  so  hap- 
hazard a  method  may  be  necessary  in  affairs  which  require 
speedy  solution,  it  would  be  very  dangerous  when  applied 
to  an  arbitral  tribunal,  as  it  would  greatly  diminish  the 
confidence  which  should  be  perfect  in  such  a  tribunal. 
The  method  of  taking  the  lot  is  left  to  the  parties  in 
dispute,  and  may  be  left  by  them  to  the  International 
Bureau. 

Professor  de  Martens,  of  Russia,  reported  that  at  the 


390  THE   TWO   HAGUE   CONFERENCES 

time  of  the  Venezuela  Arbitration,  the  arbitrators  arrived 
at  The  Hague  and  found  nothing  arranged  for  the  work 
of  the  tribunal,  which  had  no  resources  of  its  own,  —  not 
even  a  cent  for  the  purchase  of  paper !  The  conference 
therefore  adopted  a  rule  requiring  the  International  Bureau 
to  make  all  necessary  arrangements  for  the  installation  of 
tribunals.  Diplomatic  privileges  and  immunities  were 
restricted  to  "members  of  a  tribunal  in  the  exercise  of 
their  functions  and  outside  of  their  own  country." 

It  is  stated  in  an  earlier  article  that  the  Permanent  Court 
will  have  its  seat  at  The  Hague,  and  it  is  therefore  taken 
for  granted  that  the  tribunals  will  hold  their  sessions  at 
The  Hague.  The  former  rule  as  to  this  point  (Article  25) 
was  accordingly  omitted.1 

In  view  of  the  fact  that  a  number  of  states  had  adhered 
to  the  convention  since  1899,  it  was  proposed  that  such 
states  should  be  charged  with  their  proportion  of  the  ex- 
penses of  the  International  Bureau  from  the  date  of  its 
establishment ;  but  this  was  rejected  and  the  more  liberal 
rule  adopted  that  states  adhering  to  the  convention  shall 
pay  their  portion  of  the  said  expenses  from  the  date  of 
their  adherence. 

2.   Arbitral  Procedure 

a.    The  Conference  of  i8gg 

The  Russian  delegation  presented,  together  with  its 
plans  for  mediation  and  arbitration,  a  code  of  rules  for 
arbitral  procedure.     They  were  intended  to  be  used  in  all 

1  A  later  article,  under  Arbitral  Procedure,  deals  with  this  point;  see  page 
394- 


ARBITRATION  39 1 

cases  of  special  arbitration,  for  which  the  parties  to  the 
arbitration  did  not  themselves  provide  a  code  ;  but  after  the 
institution  of  the  Permanent  Court  of  Arbitration,  on  the 
initiative  of  the  British  delegation,  they  were  adopted 
especially  with  a  view  to  application  by  that  court.  They 
were  based  on  the  rules  of  procedure  adopted  by  the  tri- 
bunal which  arbitrated  the  question  of  the  boundary  line 
between  Venezuela  and  Great  Britain,  and  the  latter  were 
drawn  up  by  Professor  de  Martens,  of  Russia,  who  was 
president  of  that  tribunal,  Justice  Brewer,  of  the  United 
States  Supreme  Court,  and  Lord  Justice  Collins,  of  the 
British  High  Court  of  Judicature. - 

The  code  adopted  by  the  conference  comprised  twenty- 
eight  article  (Nos.  30  to  57  of  the  Convention  for  the 
Peaceful  Settlement  of  International  Differences),  and 
were  introduced  by  the  general  statement  that,  with  the 
object  of  encouraging  the  development  of  arbitration, 
the  signatory  powers  have  adopted  the  following  rules, 
which  shall  be  applicable  to  arbitral  procedure,  unless  the 
parties  themselves  shall  agree  upon  other  rules.  It  was 
recognized  as  a  matter  of  course  that  each  special  treaty  of 
arbitration  may  provide  the  rules  of  procedure  in  the  ar- 
bitration agreed  upon ;  but  it  was  recognized  as  a  matter 
of  fact  that  negotiations  for  agreement  upon  the  necessary 
rules  had  been  a  fruitful  source  of  delay,  uncertainty,  and 
embarrassment,  and  a  menace  to  the  successful  result  of 
various  arbitral  tribunals.  The  increasing  number  of 
arbitrations,  on  the  other  hand,  had  developed  a  wide  and 
undesirable  diversity  of  practice ;  for  the  code  of  1899  was 
the  first  successful  attempt  to  procure  international  sanc- 
tion of  even  the  most  fundamental  rules  of  procedure. 
While  providing  these  fundamental  rules,  the  conference 


392  THE   TWO    HAGUE   CONFERENCES 

sought  to  avoid  the  other  extreme  of  adopting  rules  so 
detailed  and  inelastic  that  they  would  in  their  turn  prove  an 
embarrassment  and  a  danger. 

The  sovereignty  of  states  is  recognized  both  in  the  volun- 
tary character  of  the  recourse  to  arbitration  and  in  the  rule 
concerning  the  agreement,  or  compromise,  providing  for  it. 
The  rule  prescribes  that  the  powers  which  resort  to  arbi- 
tration shall  sign  a  special  act  (compromis),  in  which  the 
question  in  litigation  shall  be  precisely  defined,  as  well  as 
the  extent  of  the  powers  of  the  arbitrators;  but  it  also 
prescribes  that  the  making  of  the  compromise  shall  imply 
an  agreement  by  each  party  to  submit  in  good  faith  to  the 
award. 

The  terms  of  the  compromise,  as  well  as  citations  from 
other  treaties,  and  from  international  law,  which  are 
quoted  in  regard  to  the  jurisdiction  of  the  tribunal  of  arbi- 
trators, shall  be  interpreted  by  the  tribunal  itself.  M. 
Asser,  of  the  Netherlands,  desired  that  the  powers  of  the 
arbitrators  might  be  given  an  even  greater  extension  than 
this.  For  example,  in  the  arbitration  between  Holland 
and  France  relating  to  the  boundaries  of  Guiana,  the 
question  arose  whether  the  arbitrator,  the  Emperor  of 
Russia,  would  be  required  to  decide  upon  the  Dutch  line  or 
the  French  line,  or  whether  he  could  award  still  another 
line ;  the  Emperor  demanded,  and  received  from  the  parties, 
the  right  to  give  an  unrestricted  award.  While  the  con- 
ference admitted  the  force  of  the  argument  thus  illustrated, 
it  decided  that  the  compromise  and  not  the  general  con- 
vention should  foresee  and  provide  for  such  contingencies. 
On  the  other  hand,  the  right  of  the  tribunal  to  interpret  its 
own  powers  was  regarded  as  necessary  to  enable  arbitra- 
tion to  take  place  at  all ;  while  the  sovereignty  of  states  was 


ARBITRATION  393 

deemed  to  be  sufficiently  safeguarded  by  their  entire  lib- 
erty in  the  making  of  the  compromise. 

The  tribunal  is  also  given  the  right  of  determining  such 
administrative  details  of  the  arbitration  as  the  manner  and 
time  in  which  each  party  must  conclude  its  argument,  and 
the  regulations  for  the  admission  of  evidence.1 

The  constitution  of  the  tribunal  was  carefully  provided 
for.  It  may  consist  of  one  arbitrator,  or  of  more  than  one, 
and  may  be  selected  or  not  from  the  Permanent  Court, 
as  the  parties  to  the  dispute  may  decide.  If  the  parties 
fail  to  agree  on  its  constitution,  it  shall  be  formed  as 
follows :  Each  party  shall  appoint  two  arbitrators,  and 
these  shall  together  choose  an  umpire,  or  sur-arbiter;  in 
case  of  an  equal  division  of  votes,  the  choice  of  the  um- 
pire shall  be  intrusted  to  a  third  power,  agreed  upon  by 
the  parties ;  if  a  third  power  can  not  be  agreed  upon,  each 
party  shall  select  a  different  power,  and  the  choice  of  the 
umpire  shall  be  made  by  agreement  between  the  powers 
thus  selected.  The  umpire  is  to  preside  over  the  tribunal ; 
and  if  the  parties  constitute  a  tribunal  without  an  umpire, 
then  the  tribunal  shall  elect  its  own  presiding  officer.  M. 
Papiniu,  of  Roumania,  desired  some  rule  adopted  which 
should  regulate  the  case  where  the  parties  constitute  a  tri- 
bunal without  an  umpire  and  with  an  even  number  of 
arbitrators;  for  under  such  conditions,  he  said,  an  award 
might  be  impossible.  The  conference  declined,  however,  to 
make  provision  for  such  an  abnormal  case,  and  contented 
itself  with  a  warning  against  it.2 

1  When  a  sovereign,  or  executive  head  of  a  state,  is  selected  as  arbitrator, 
the  conference  recognizes  his  right,  "for  reasons  of  high  consideration,"  to 
determine  the  arbitral  procedure  to  be  followed. 

2  An  even  number  of  arbitrators  was  provided  for  in  the  proposed  treaty 
of  arbitration  between  the  United  States  and  Great  Britain. 


394  THE  TW0   HAGUE   CONFERENCES 

In  case  of  the  death,  resignation,  or  absence,  for  any 
cause,  of  one  of  the  arbitrators,  his  place  is  to  be  filled  in 
the  manner  provided  for  his  appointment.  This  rule  was 
substituted,  after  a  long  discussion,  for  the  Russian  propo- 
sition, which,  in  case  of  the  death,  resignation,  or  absence 
of  one  of  the  arbitrators,  made  the  compromise  null  and 
void,  and  required  the  arbitration  and  agreement  for  it  to 
be  taken  up  anew. 

Professor  de  Martens  and  Mr.  Holls  supported  the 
Russian  proposition,  for  the  reason  that  arbitration  is 
above  all  a  question  of  personal  confidence  in  the  arbi- 
trators; it  is  by  virtue  of  this  personal  confidence  that 
the  arbitral  tribunal  is  constituted  and  forms  a  veritable 
organism;  and  the  personality  of  the  arbitrators  consti- 
tutes one  of  the  chief  guarantees  of  the  tribunal's  im- 
partiality. The  reply  was  made  to  this  argument  that  it 
might  perhaps  apply  to  a  sur-arbiter,  but  not  to  the  other 
arbiters;  that  the  government  which  has  confided  in  one 
arbitrator  may  also  confide  in  another  chosen  by  it ;  that, 
very  often,  arbitrators  are  old  men  and  may  die  before  the 
end  of  a  long  arbitration,  and  in  such  case  the  fruit  of 
long  labor  should  not  be  lost  simply  because  of  the  death 
or  removal  of  one  man ;  and  that,  in  general,  a  rule  should 
be  favorable  to  the  success  of  arbitration.  This  reason- 
ing secured  a  majority  vote,  though  a  small  one,  for  the 
rule  as  stated  above.  It  was  recognized,  of  course,  that 
states  could  make  a  specific,  and  different,  agreement  in 
regard  to  this  matter. 

In  case  the  parties  do  not  agree  on  the  place  where  the 
tribunal  is  to  sit,  The  Hague  is  designated ;  and  it  is  pro- 
vided that  the  place  of  session  shall  not,  except  in  case  of 
overwhelming  necessity,  be  changed  by  the  tribunal  with- 


ARBITRATION  395 

out  the  consent  of  the  parties.  The  tribunal  is  given  the 
right  to  decide  on  the  languages  l  to  be  used  by  itself,  or 
authorized  to  be  used  before  it. 

The  desirability  of  having  the  parties  to  a  dispute  repre- 
sented by  agents,  and  their  rights  and  interests  defended  by 
counselors  or  solicitors,  before  the  tribunal,  is  recognized, 
and  their  appointment  is  vested  in  the  parties  themselves. 
The  only  question  raised  in  regard  to  this  rule  was  that  of 
Mr.  Low,  of  the  United  States,  who  inquired  as  to  the  de- 
sirability of  permitting  members  of  the  Permanent  Court, 
who  are  not  selected  as  members  of  special  tribunals,  to 
serve  as  agents,  counselors,  or  advocates  before  the  tri- 
bunals. This  question  was  made  the  subject  of  a  long 
discussion,  in  the  course  of  which  the  United  States  dele- 
gation proposed  that  no  member  of  the  court,  during  the 
term  of  his  appointment,  should  act  as  agent,  counselor,  or 
advocate  for  any  government  except  his  own  or  the  one 
which  appointed  him  a  member  of  the  court.  In  pre- 
senting this  proposition,  Mr.  Holls  said  that  his  delegation 
would  have  preferred  the  more  stringent  English  rule  of 
"once  a  judge,  always  a  judge"  ;  but  since  the  term  of  the 
members  of  the  court  is  only  six  years,  and  since  it  is  desir- 
able not  to  restrict  unduly  the  liberty  of  states  in  appoint- 
ing their  representatives,  the  delegation  had  proposed  the 
less  strict  rule.  The  argument  for  this  rule  was  that,  since 
the  judges  are  recommended  by  one  government  to  all  the 
other  governments,  it  is  in  the  interests  of  all  that  they 
should  be  not  only  independent  and  impartial,  but  above 
suspicion.     There  was  general  agreement  that  no  member 

1  The  rule  of  1899  used  the  word  languages;  but  as  the  tribunal  [tself  uses 
only  one  language  officially,  the  word  language  was  substituted  in  1907, 
although  the  use  of  more  than  one  language  before  the  tribunal  is  authorized. 


396  THE   TWO   HAGUE   CONFERENCES 

of  the  court,  during  the  exercise  of  his  functions  as  member 
of  the  arbitral  tribunal,  should  accept  an  appointment  as 
agent  or  advocate  before  another  arbitral  tribunal.  But 
even  this  opinion  was  not  embodied  in  a  rule,  and  the 
American  proposition  also  was  rejected,  for  the  reasons 
that  every  disqualification  would  restrict  the  liberty  of 
appointment  by  the  states ;  that  the  matter  could  safely  be 
left  to  the  good  sense  of  the  states  themselves,  their  bench, 
and  bar ;  and  that,  probably,  experience  would  evolve  the 
proper  rule. 

Ten  articles  were  devoted  to  rules  of  procedure  before 
the  arbitral  tribunal  itself.  They  provided  that  the  pro- 
cedure shall  comprise,  as  a  general  rule,  two  distinct 
phases :  preliminary  examination  and  discussion.  Pre- 
liminary examination  is  stated  to  mean  the  communication, 
by  the  agents  of  the  parties,  to  the  members  of  the  tribunal 
and  to  the  opposing  party,  of  all  printed  or  written  acts, 
and  of  all  documents  containing  the  arguments  to  be  in- 
voked in  the  case;  while  discussion  is  defined  as  the  oral 
development  of  these  arguments  before  the  tribunal. 

Every  document  produced  by  one  party  must  be  commu- 
nicated to  the  other  party;  the  tribunal  decides  upon  the 
method  and  time  of  such  communications,  and  when  the 
preliminary  examination  is  concluded,  it  may  refuse  to 
admit  any  new  acts  or  documents  which  one  party  may 
desire  to  submit  to  it,  if  the  other  party  objects  to  such 
admission ;  and  the  tribunal  may  also  require  from  the 
agents  of  the  parties  the  production  of  all  papers  and 
demand  all  necessary  explanations,  and  in  case  of  the 
agents'  refusal  the  tribunal  shall  take  note  of  the  fact. 

The  discussions,  under  the  direction  of  the  president, 
shall  be  public  only  in  case  it  shall  be  so  decided  by  the 


ARBITRATION  397 

tribunal,  with  the  assent  of  the  parties.  They  shall  be 
recorded  in  the  official  minutes  drawn  up  by  the  secretaries 
appointed  by  the  president.  The  agents  and  counsel  of  the 
parties  are  authorized  to  present  orally  to  the  tribunal  all 
the  arguments  which  they  may  deem  to  be  expedient  in  sup- 
port of  their  cause,  and  to  raise  objections  or  make  inci- 
dental motions.  The  tribunal  shall  decide  on  these  objec- 
tions or  motions,  and  its  decisions  shall  be  final  and  not 
subject  to  any  subsequent  discussion.  The  members  of 
the  tribunal  are  given  the  right  to  question  the  agents  or 
counsel  of  the  parties,  and  to  demand  explanations  on 
doubtful  points;  but  neither  the  questions  nor  the  inci- 
dental remarks  of  the  members  of  the  tribunal  are  to  be 
regarded  as  an  expression  of  opinion  by  the  tribunal  in 
general,  or  by  its  members  in  particular.  When  the  agents 
and  counsel  have  presented  all  the  arguments  and  evidence 
in  support  of  their  case,  the  president  shall  declare  the 
hearing  closed. 

The  procedure  described  above  is  the  form  familiar  in 
American  and  British  courts,  and  needs  no  special  com- 
ment here.  The  only  feature  of  it  which  received  special 
comment  in  the  conference  was  the  rule  authorizing  the 
members  of  the  tribunal  to  demand  documents  and  ex- 
planations of  the  agents  or  counsel.  While  there  was  a 
general  agreement  that  a  state,  through  its  representatives, 
can  not  be  compelled  to  produce  documents  and  answer 
questions,  it  was  also  unanimously  agreed  that  the  tribunal 
should  be  given  the  right  to  demand  them  and  to  take 
note  {prendre  acte)  of  their  refusal;  and,  of  course,  such 
refusal  may  influence  the  award  rendered. 

Three  articles  prescribe  the  following  rules  in  regard 
to  the  award:  the  tribunal's  deliberations  shall  take  place 


398  THE  TWO   HAGUE   CONFERENCES 

behind  closed  doors;  every  decision  shall  be  made  by  a 
majority  vote,  and  the  refusal  of  any  member  to  vote  shall 
be  noted  in  the  official  minutes ;  the  award  shall  be  made 
by  a  majority  of  votes,  and  shall  be  accompanied  by  a 
statement  of  the  reasons  upon  which  it  is  based ;  it  must 
be  drawn  up  in  writing  and  signed  by  each  member  of  the 
tribunal;  the  minority  members  may,  in  signing  it,  state 
their  dissent ;  it  shall  be  read  in  a  public  sitting  of  the  tri- 
bunal, the  agents  and  counsel  of  the  litigants  being  present 
or  having  been  duly  summoned. 

The  rule  that  the  award  shall  be  accompanied  by  a 
statement  of  the  reasons  upon  which  it  is  based  was  op- 
posed by  Professor  de  Martens,  who  argued  that  while 
the  arbitrators  might  recognize  the  fact  that  their  govern- 
ments were  in  the  wrong  and  would  vote  for  an  adverse 
award,  they  would  not  do  so  if  obliged  to  sign  a  statement 
criticising  their  governments'  policies  and  measures; 
and  that  a  full  and  impartial  arbitration  would  thus  be 
prevented.1  To  this  argument  it  was  replied  that  a 
statement  of  the  reasons  for  the  award  constitute  a  funda- 
mental guarantee  of  its  justice;  that  some  questions 
can  not  be  answered  by  a  simple  yes  or  no ;  that  the  tri- 
bunal may  adopt  any  form  and  scope  of  such  statement 
that  it  may  deem  advisable;  that  arbitral  awards  should 
be  judicial  sentences,  and  these  are  unimaginable  without 
a  statement  of  reasons ;  that  the  force  of  an  award  resides 
rather  in  its  reasons  than  in  the  decision  itself;  and  that 
it  would  be  impossible  to  found  a  complete  international 
jurisprudence  upon  arbitral  sentences  alone,  without  the 
reasons  supporting  them. 

1  Professor  de  Martens  cited  the  Alabama  and  Behring  Fisheries  arbitra- 
tions as  cases  in  which  arbitrators  refused  to  sign  the  award  because  of  the 
statement  of  reasons  on  which  it  was  based. 


ARBITRATION  399 

Another  proposed  amendment  to  the  above  rule  was  that 
the  reasons  for  the  vote  of  the  minority  should  also  be 
stated,  and  this  not  only  in  justice  to,  or  as  a  check  upon, 
the  minority,  but  because  their  reasons  would  inevitably 
be  published,  either  in  their  reports  to  their  governments 
or  in  the  press,  and  thus  the  disagreement  between  the 
judges  would  be  greatly  accentuated.  But  this  amend- 
ment was  rejected  on  the  ground  that  it  would  imply 
two  awards  in  each  case,  and  that  it  would  oblige  the  tri- 
bunal itself  to  accentuate  in  the  public  mind  its  difference 
of  opinion. 

The  question  of  an  appeal  and  a  rehearing  was  the  sub- 
ject of  two  articles  and  of  a  prolonged  debate.  It  was 
decided  that  the  award,  duly  pronounced  and  notified 
to  the  agents  of  the  parties  in  litigation,  shall  decide  the 
dispute  finally  and  without  appeal;  and  that  a  rehearing 
of  the  case  may  be  permitted  only  when  the  right  to  demand 
it  has  been  reserved  by  the  parties  in  their  agreement  to 
arbitrate,  and,  in  the  absence  of  any  stipulations  to  the 
contrary,  only  under  the  following  conditions :  first,  the 
demand  must  be  addressed  to  the  tribunal  which  has  pro- 
nounced the  judgment ;  second,  it  may  be  based  only  on 
the  discovery  of  a  new  fact,  of  such  a  kind  as  would  have 
exercised  a  decisive  influence  on  the  award,  and  which 
at  the  end  of  the  discussion  was  unknown  to  the  tribunal 
itself  and  to  the  party  demanding  the  rehearing;  third, 
the  tribunal  itself  must  decide  on  the  existence  and  impor- 
tance of  the  new  fact ;  and,  finally,  the  agreement  of  arbi- 
tration must  have  determined  the  time  within  which  the 
demand  for  a  rehearing  shall  be  made. 

Mr.  Holls  began  the  discussion  of  these  two  articles 
by  moving  to  strike  out  in  the  first  one  the  words  "  without 


400  THE   TWO    HAGUE   CONFERENCES 

appeal,"  and  to  substitute  the  words  "every  litigant  shall 
have  the  right  to  a  second  hearing,  before  the  same  judges 
and  within  a  period  of  three  (or  six)  months."  Professor 
de  Martens  opposed  this  motion  for  the  reason  that,  by 
opening  the  door  in  advance  to  the  possibility  of  revision, 
the  conference  "would  tear  down  with  one  hand  what  it 
builds  up  with  the  other":  would  deprive  arbitration  of 
a  part  of  its  value  and  eternalize  disputes  instead  of  ending 
them.  Mr.  Holls  admitted  that  the  sentence  should  be 
final  and  without  appeal,  but  said  that  his  idea  was  not 
to  permit  an  appeal,  from  one  court  to  another,  but  a 
revision,  by  the  same  judges,  and  that  only  in  case  of  the 
discovery  of  a  new  and  important  fact. 

But  this  interpretation  was  also  opposed  by  several 
members,  in  both  the  committee  and  the  commission, 
their  reasons  being:  the  difficulty  of  defining  and  appre- 
ciating the  importance  of  a  new  fact ;  the  possibility  of 
one  of  the  judges  dying  before  the  revision,  which  would 
necessitate  practically  a  new  trial ;  the  attacks  upon  the 
first  award  by  the  public  press  and  by  members  of  legis- 
lative bodies,  which  would  be  encouraged  by  the  hope  of  a 
revision ;  the  suspension  of  the  execution  of  the  award 
until  after  the  revision ;  the  possibility  of  discovering  an 
important  new  fact  within  a  few  days  after  the  lapse  of 
the  three  or  six  months  prescribed  as  the  limit  for  the  re- 
vision ;  the  possibility  that  the  important  new  fact  may 
not  be  discovered  until  years  after  the  award,  —  until 
the  examination  of  the  posthumous  papers,  for  example, 
of  one  of  the  persons  interested  in  the  dispute  ;  the  diminu- 
tion of  that  sense  of  responsibility  which  judges  feel 
when  called  upon  to  pronounce  an  absolutely  final  verdict ; 
the  fact  that  all  human  justice  is  liable  to  err,  and  that,  for 


ARBITRATION  401 

the  sake  of  redressing  a  few  exceptional  errors,  the  entire 
system  of  arbitration  should  not  be  put  in  jeopardy. 

These  objections  were  answered  one  by  one  in  the 
following  way :  the  tribunal  itself  should  decide  on  the 
existence  and  importance  of  the  "new  fact";  there  is  a 
possibility  of  one  of  the  judges  dying  before  the  end  of  the 
arbitration  itself,  as  well  as  before  the  end  of  the  revision, 
and  the  vacancy  must  be  filled  in  one  case  as  in  the  other ; 
the  "attacks"  of  irresponsible  parties  upon  an  award  in 
the  hope  of  a  revision  would  be  more  than  counterbalanced 
by  the  enlightened  opinion  of  the  civilized  world ;  the 
award  should  not  be  executed  until  substantial  justice  is 
assured ;  the  close  scrutiny  and  criticism  of  the  case, 
immediately  after  the  rendering  of  the  award,  will  make 
it  entirely  probable  that  within  three  months,  if  ever,  the 
important  "new  fact"  will  be  found;1  the  moral  respon- 
sibility of  the  judges  would  not  be  lessened,  but  rather 
increased,  —  as  would  be  also  the  moral  authority  of  the 
award,  —  if  a  provision  for  correcting  errors  on  their  part 
exists;  and,  finally,  there  is  a  limit  to  the  principle  that 
the  chief  end  of  arbitration  is  to  settle  promptly  and  for- 
ever international  disputes,  the  limit,  namely,  imposed  by 
justice  and  stated  in  Abraham  Lincoln's  famous  saying : 
"Nothing  is  settled  until  it  is  settled  right." 

Mr.  Holls  and  Professor  de  Martens  were  the  cham- 
pions, respectively,  of  the  American  and  the  Russian  view 
of  the  question  of  revision,  and  each  of  them  made  able 
and  eloquent  arguments  in  both  the  committee  and  the 

1  The  American  delegation  proposed  as  an  amendment  to  its  original 
proposition  that  the  period  within  which  the  revision  must  occur  shall  be 
determined  by  agreement  between  the  parties  when  the  treaty  for  arbitration 
is  made;   this  amendment  was  accepted. 


402 


THE    TWO    HAGUE   CONFERENCES 


commission.  The  warm  and  long  debate  ended,  as  is 
almost  inevitable  in  an  international  as  opposed  to  a 
parliamentary  assembly,  in  a  compromise  between  the  two 
extremes.  The  principle  of  revision  was  adopted,  but  not 
as  a  general  rule,  and  only  under  the  well-defined  excep- 
tional circumstances  stated  above. 

The  last  two  articles  in  the  code  of  arbitral  procedure 
provided  for  the  scope  of  the  award  and  the  expenses  of 
the  arbitration,  and  gave  rise  to  but  little  comment. 
The  award  is  obligatory  only  upon  the  parties  who  have 
concluded  the  arbitration  agreement.  When  there  is  a 
question  of  the  interpretation  of  a  treaty  participated  in 
by  other  powers  besides  the  parties  in  litigation,  the 
parties  shall  notify  these  other  powers  of  the  arbitration 
agreement  which  they  have  concluded.  Each  of  these 
powers  has  the  right  to  take  part  in  the  arbitration ;  and 
if  one  or  more  of  them  exercises  this  right,  the  interpreta- 
tion of  the  treaty  contained  in  the  award  shall  be  equally 
obligatory  upon  them  also. 

Each  party  shall  bear  its  own  expenses  and  an  equal 
share  of  the  expenses  of  the  tribunal. 

b.    The  Conference  of  igoj 

The  code  of  arbitral  procedure  adopted  in  1899  was 
referred  to  a  special  committee  of  examination  in  1907. 
Its  twenty-eight  articles  were  increased  to  forty-one,  and 
a  few  of  these  additions  were  of  considerable  impor- 
tance, but  only  a  few  changes  were  made  in  the  original 
ones. 

It  was  provided  that  the  arbitration  agreement,  or 
compromise,  shall  define  not  only  the  question  in  litigation 


ARBITRATION  403 

and  the  powers  of  the  arbitrators,  but  also  the  date  before 
which  the  arbitrators  shall  be  appointed;  the  form,  order, 
and  time  of  the  preliminary  examination  and  discussion; 
the  sum  of  money  to  be  deposited  in  advance  by  each  party 
for  the  expenses  of  the  arbitration ;  the  method  of  appoint- 
ing the  arbitrators ;  and  the  place  of  meeting  and  language 
of  the  tribunal.  This  extended  rule  in  regard  to  the  com- 
promise was  proposed  by  Dr.  Kriege,  of  Germany,  in 
order,  as  he  said,  to  prevent  delay  and  uncertainty  in 
regard  to  the  tribunal.  But  the  danger  lest  a  fulfillment 
of  all  these  conditions  by  the  parties  in  dispute  might  have 
the  reverse  of  the  desired  result,  caused  the  adoption  of 
the  further  provision  that  the  Permanent  Court  may 
establish  the  compromise  if  the  parties  agree  to  refer 
it  to  it.  The  German  delegation  proposed  also  a  com- 
mission of  five  members  (to  be  chosen  from  the  Permanent 
Court,  in  the  same  manner  as  was  provided  for  the  choice 
of  arbitrators)  to  establish  the  compromise  when  the 
parties  so  agree ;  and  this  proposition,  too,  was  adopted 
after  a  long  debate  and  considerable  opposition.  It  was 
agreed  that  when  a  commission  to  establish  the  compromise 
is  resorted  to,  it  shall  itself  constitute  the  arbitration 
tribunal,  unless  otherwise  stipulated  by  the  parties. 

The  Austrian  delegation,  seconded  by  the  delegation 
from  China,  renewed  the  proposition  of  Mr.  Holls  in 
1899  to  prevent  members  of  the  Permanent  Court  from 
being  appointed  to  serve  on  an  arbitration  tribunal  by 
their  own  governments,  or  the  governments  which  ap- 
pointed them  members  of  the  court,  when  the  tribunal 
is  composed  of  only  three  members ;  and  when  the  tribunal 
is  composed  of  five  members,  to  permit  one  of  them  to  be 
the  citizen  or  appointee  on  the  court  of  each  of  the  parties. 


404  THE  TWO   HAGUE   CONFERENCES 

This  rule  was  adopted,  but  in  the  form  already  adopted 
for  the  formation  of  the  tribunal.1 

The  Russian  delegation  proposed  that  the  tribunal 
should  always  choose  its  own  president,  even  when  a 
sur-arbiter  is  one  of  its  members;  and  Professor de  Martens 
advocated  this  proposition  for  the  reason  that  experience 
since  1899  has  shown  that  a  sur-arbiter  may  possess  all 
the  qualities  valuable  for  casting  a  deciding  vote  on  judicial 
questions,  but  may  at  the  same  time  have  no  noteworthy 
qualifications  of  a  presiding  officer.  But  this  proposition 
was  rejected  for  the  reasons,  stated  by  Professor  Lam- 
masch,  of  Austria,  that  if  the  sur-arbiter  is  not  given  the 
presidency  ex  officio,  it  might  be  regarded  as  a  certain  lack 
of  confidence  in  him;  that  the  arbitrators  may  often  be 
unknown  to  each  other,  and  hence  can  not  make  a  good 
choice ;  and  that  in  the  choice  of  a  presiding  officer,  the 
tribunal  might  indicate  a  preference  for  his  country  and 
his  cause. 

The  Russian  delegation  proposed  the  rule,  advocated  by 
the  American  delegation  in  1899,  that  members  of  the 
Permanent  Court  should  not  be  permitted  to  plead  before 
the  tribunal  in  the  capacity  of  counsel  or  advocate,  or 
to  act  as  agents  before  it.  The  American,  British,  and 
Austrian  delegations  warmly  supported  this  proposition; 
but  it  was  still  considered  too  drastic,  and  the  conference 
adopted  the  more  moderate  German  proposal  that  members 
of  the  Permanent  Court  may  perform  such  services  only 
for  the  power  which  has  appointed  them  to  the  court. 
It  was  believed  that  this  rule  will  not  only  enable  each 
party  to  the  dispute  to  be  represented  on  the  tribunal,  and 
to  utilize  its  best  men  as  both  arbitrators  and  advocates, 

1  See  page  384. 


ARBITRATION  405 

but  will  also  protect  the  good  name  of  a  judge  from  the 
suspicion  of  partiality  which  would  attach  to  it  in  conse- 
quence of  undue  practice  as  a  counselor  or  advocate 
before  arbitration  tribunals. 

A  rule  of  1899  prescribed  that  the  arbitration  tribunal 
shall  determine  the  period  within  which  the  parties  must 
present  their  case  in  writing  (the  "preliminary  examina- 
tion "  or  instruction).  Dr.  Kriege,  of  Germany,  moved 
to  amend  this  rule  so  as  to  have  this  period  determined 
in  the  compromise.  The  amendment  was  adopted  for 
the  reason  that,  as  shown  in  the  California  Pious  Funds 
case,  the  old  rule  required  long  and  expensive  journeys 
on  the  part  ot  the  arbitrators  solely  for  the  purpose  of 
determining  this  preliminary  point  of  procedure.  It  was 
also  provided,  however,  on  the  motion  of  Sir  Edward  Fry, 
of  Great  Britain,  that  the  period  fixed  by  the  compromise 
may  be  prolonged  by  common  consent  of  the  parties,  or 
by  the  tribunal  when  the  latter  deems  a  longer  time  neces- 
sary for  arriving  at  a  just  decision. 

The  German  delegation  proposed  also  the  rule  that 
the  tribunal  shall  not  meet  until  after  the  close  of  the  in- 
struction. But  M.  Fromageot,  of  France,  showed  by  ref- 
erence to  the  Behring  Fisheries  case  that  a  question  of 
procedure  may  suddenly  assume  capital  importance  and 
require  the  tribunal's  decision  before  further  progress 
can  be  made ;  also  that  the  instruction  may  require  the 
hearing  of  certain  witnesses,  the  formation  of  a  commission 
of  inquiry,  and  the  like.  It  was  accordingly  decided  to 
adopt  the  rule  that,  except  under  special  circumstances, 
the  tribunal  will  not  meet  until  after  the  close  of  the 
instruction. 

The  parties  agree  to  furnish  the  tribunal,  to  the  largest 


4o6  THE  TWO   HAGUE   CONFERENCES 

extent  they  judge  possible,  the  means  necessary  to  decide 
the  dispute;  and  when  it  becomes  necessary  for  the  tri- 
bunal to  make  investigations  on  the  territory  of  a  third 
power,  it  must  conform  to  the  rule  adopted  for  Inter- 
national Commissions  of  Inquiry.1 

To  the  rule  that  the  deliberations  of  the  tribunal  shall 
take  place  behind  closed  doors  were  added  the  words 
"and  shall  remain  secret." 

Dr.  Kriege,  of  Germany,  endeavored  to  secure  a  provi- 
sion that  when  an  arbitral  decision  requires  execution,  the 
tribunal  shall  determine  the  period  within  which  its  execu- 
tion shall  occur.  But  Sir  Edward  Fry  and  Mr.  Crowe, 
of  Great  Britain,  strongly  opposed  this  rule,  and  it  was 
rejected  on  the  ground  that  the  tribunal  has  no  power 
to  enforce  its  sentences,  and  since  their  execution  depends 
solely  on  the  good  faith  of  the  parties,  all  appearance  of 
coercion  should  be  carefully  avoided. 

The  rule  of  1899,  which  required  the  minority  members 
of  the  tribunal  to  sign  the  award,  but  permitted  them, 
in  signing,  to  state  their  dissent  to  it,  was  vigorously 
attacked  by  M.  Loeff,  of  the  Netherlands.  He  asserted 
that  it  was  in  flagrant  opposition  to  one  of  the  great  funda- 
mental principles  of  arbitral  procedure,  the  principle, 
namely,  which  requires  that  the  award  shall  be  final,  not 
only  in  the  sense  that  it  may  not  be  appealed  to  another 
court,  but  also  in  the  other  sense  that  it  should  end  all 
further  discussion,  especially  outside  of  the  tribunal's 
chamber.  "We  all  know,"  he  said,  "the  saying,  'Rome 
has  spoken,  the  thing  is.  finished ' ;  it  seems  to  me  of  the 
last  importance  that  this  same  saying  should  be  applied 
to  an  arbitral  award  and  that  it  might  be  truly  said,  '  The 

1  See  page  295. 


ARBITRATION  407 

tribunal  has  spoken,  the  affair  is  ended.'  "  Professor  de 
Martens  said  in  reply  that  it  was  an  old  established  custom 
in  arbitral  awards  to  permit  the  minority  members,  who 
may  be  placed  in  the  minority  solely  by  the  deciding  vote 
of  the  sur-arbiter,  to  state  their  dissent  to  the  majority 
award ;  but  that  he  admitted  the  force  of  M.  Loeff's 
argument,  and  was  quite  willing  to  have  the  matter  con- 
sidered by  the  committee  of  examination.  As  a  result  of 
this  consideration,  it  was  decided  that  the  arbitral  award 
shall  mention  the  names  of  the  arbitrators,  but  that  it 
shall  be  signed  only  by  the  president  and  clerk  of  the 
tribunal.  The  former  statement  that  the  award  shall  be 
made  by  a  majority  vote  is  not  retained,  although  it  is, 
of  course,  implied ;  but  the  former  provision,  that  a  state- 
ment of  the  reasons  upon  which  the  award  is  based  shall 
accompany  the  award,  is  retained  in  the  new  rule. 

The  finality  of  the  award,  in  the  sense  of  the  inadmis- 
sibility of  an  appeal  to  another  court,  was  reasserted; 
but,  on  the  motion  of  the  Italian  delegation,  it  was  pro- 
vided that  any  difference  which  may  arise  between  the 
parties  concerning  the  interpretation  or  execution  of  the 
award  shall  be  submitted,  unless  otherwise  stipulated, 
to  the  decision  of  the  tribunal  which  rendered  it. 

No  change  was  made  in  the  much-debated  rule  of  1899 
concerning  the  revision  of  the  arbitral  award.  Professor 
de  Martens  moved  the  suppression  of  the  rule  as  being 
opposed  to  the  essence  of  arbitration;  he  recalled  the 
debate  of  1899,  and  said  that  he  had  continued  a  firm 
opponent  of  revision  ever  since,  that  the  Arbitration  Tri- 
bunal of  1902  had  joined  unanimously  in  the  expression 
of  a  desire  to  abolish  the  privilege  of  resorting  to  it,  and 
that  not  one  of  the  four  arbitral  awards  rendered  by  the 


408  THE   TWO   HAGUE   CONFERENCES 

Hague  tribunals  had  given  rise  to  a  demand  for  revision. 
Ambassador  Choate,  of  the  United  States,  and  the  rep- 
resentatives of  Belgium,  Brazil,  Germany,  the  Nether- 
lands, Persia,  and  Roumania  all  opposed  Professor  de 
Martens's  motion  and  replied  to  his  arguments  in  very 
much  the  same  way  that  the  debaters  of  1899  had  done, 
with  the  additional  reason  that,  since  the  rule  as  adopted 
represented  an  accepted  compromise  between  very  pro- 
nounced opinions,  it  would  be  best  not  to  alter  it  in  any 
way. 

The  code  of  1899  having  been  discussed  and  amended, 
the  French  delegation  proposed  a  series  of  additional 
rules  which  should  regulate  what  it  called  "the  summary 
procedure  of  arbitration."  Professor  Renault,  in  present- 
ing the  proposed  rules,  said  that  they  were  designed  to  be 
applied  to  the  most  frequent  cases  of  arbitration  —  tech- 
nical questions  and  those  of  secondary  importance  — 
which  demand  prompt  solution.  "We  believe,"  he  said, 
"that  it  is  possible  in  such  cases  to  apply  the  arbitral 
procedure  adopted  in  1899  in  a  simpler  and  more  practical 
form,  and  our  plan  is  inspired  by  the  arbitral  agreements 
already  included  in  several  treaties,  notably  in  those  be- 
tween Switzerland  and  Germany,  France,  and  Italy. 
The  fundamental  idea  of  our  plan  is  the  simplification 
of  the  arbitral  tribunal's  organization  and  its  specializa- 
tion." Baron  von  Bicberstein,  of  Germany,  cordially 
indorsed  the  French  propositions  as  well  calculated  to 
simplify  arbitral  procedure  and  to  facilitate  its  use. 

The  five  rules  based  upon  the  French  propositions 
caused  but  very  little  discussion,  and  were  unanimously 
adopted.  They  are  prefaced  by  the  statement  that,  with 
the  object  of  facilitating  the  operation  of  arbitral  justice 


ARBITRATION  409 

in  controversies  adaptable  to  summary  procedure,  the 
contracting  powers  have  adopted  the  following  rules, 
which  will  be  observed  in  the  absence  of  other  stipulations 
and  in  subordination  to  the  application  of  the  foregoing 
rules. 

Each  of  the  parties  to  the  dispute  shall  name  an  arbi- 
trator. The  French  plan  proposed  that  these  should  be 
chosen  from  among  the  citizens  of  the  parties  at  variance, 
but  on  the  motion  of  Sir  Edward  Fry  this  limitation  was 
stricken  out.  The  two  arbitrators  thus  appointed  shall 
elect  a  sur-arbiter.  If  they  can  not  agree  upon  a  sur- 
arbiter,  each  one  shall  present  two  candidates  from  the 
list  of  members  of  the  Permanent  Court,  other  than  the 
appointees  or  citizens  of  the  parties  in  dispute ;  the  sur- 
arbiter  shall  then  be  selected  by  lot  from  the  candidates. 
The  sur-arbiter  shall  preside  over  the  tribunal,  which  will 
render  its  decision  by  a  majority  vote.  In  default  of 
previous  arrangement  the  tribunal  shall  determine,  as 
soon  as  it  is  formed,  the  period  within  which  the  two 
parties  shall  submit  to  it  their  respective  memorials. 
Each  party  shall  be  represented  before  the  tribunal  by 
an  agent  to  serve  as  an  intermediary  between  the  tribunal 
and  the  government  which  has  appointed  him. 

The  arbitral  procedure  shall  comprise  an  examination 
of  documents  only;  but  each  party  shall  have  the  right 
to  demand  the  hearing  of  witnesses  and  experts,  and  the 
tribunal  shall  have  the  privilege  of  demanding  oral  ex- 
planations from  the  agents  of  the  parties,  as  well  as  from 
the  experts  and  witnesses  whom  it  shall  deem  desirable  to 
summon. 


410  THE  TWO   HAGUE  CONFERENCES 

3.   The  Court  of  Arbitral  Justice 
The  Conference  of  1  go  7 

The  proposition  of  the  United  States  of  America  for 
the  establishment  of  a  court  of  arbitral  justice  was  sub- 
jected to  a  preliminary  discussion  in  four  sessions  of  the 
first  subcommission  of  the  I  Commission,  to  a  detailed 
examination  in  eight  meetings  of  a  subcommittee  (Com- 
mittee B),  to  a  final  discussion  in  three  sessions  of  the  I 
Commission,  and  to  a  vote  in  the  ninth  plenary  session  of 
the  conference  itself. 

Both  the  Russian  and  the  United  States  delegations 
presented  plans,  in  the  early  part  of  the  conference,  for 
the  establishment  of  such  a  court ;  but  the  American 
plan  was  taken  as  the  basis  of  the  discussion.  This  plan 
was  presented,  the  delegation  stated,  with  the  object  of 
facilitating  an  immediate  recourse  to  the  judicial  decision 
of  international  differences  which  diplomatic  means  have 
been  unable  to  settle ;  and  the  proposed  court  was  designed 
to  be  a  permanent  one,  accessible  at  all  times,  and  con- 
forming, unless  otherwise  stipulated,  to  the  rules  of  pro- 
cedure adopted  by  the  two  conferences. 

The  eminent  jurisconsult  of  the  Netherlands,  M.  Asser, 
opened  the  preliminary  discussion  of  the  subject  by  a 
speech  in  the  course  of  which  he  praised  highly  the  Per- 
manent Court  of  1899  as  being  the  pioneer  stage  in  the 
progress  of  international  justice,  but  pointed  out  its  inad- 
equacy for  changed  conditions  and  larger  demands. 

"Instead  of  a  permanent  court"  M.  Asser  said,  "the  Convention 
of  1899  gave  only  the  phantom  of  a  court,  an  impalpable  specter  or, 
to  speak  more  precisely,  it  gave  a  secretariat  and  a  list.     And  when 


ARBITRATION  41 1 

two  powers,  having  a  difference  to  settle,  .  .  .  demand  that  the  doors 
of  the  court  at  The  Hague  be  opened  to  them,  the  Secretary-General, 
thanks  to  the  munificence  of  Mr.  Carnegie,  can  show  them  a  splendid 
hall,  but  instead  of  a  court  he  can  only  present  to  them  a  list  on  which 
they  may  find  a  large  number  of  names  of  persons  'of  a  recognized 
competence,  etc'  .  .  .  You  remember,  gentlemen,  how  a  great 
monarch,  —  who  was  not  only  a  famous  general  but  a  philosopher  as 
well,  trained  in  the  French  school  of  the  Eighteenth  Century,  —  on 
the  point  of  committing  an  injustice,  was  struck  by  the  exclamation 
of  a  simple  miller,  who  reminded  him  that  'There  are  judges  at  Ber- 
lin !' ;  and  how,  '  Charmed  that  beneath  his  sway  justice  was  be- 
lieved in,'  he  submitted  to  the  simple  miller's  suit.  Then,  gentlemen, 
when  some  day  a  tribunal  truly  permanent  shall  sit  here  ...  it  will 
not  be  without  practical  result  that  the  nations  shall  invoke  the 
famous  article  inspired  by  France  —  the  article  of  Duly  '  —  and  shall 
say  to  a  state  on  the  point  of  committing  an  injustice,  'There  are 
judges  at  The  Hague  !'" 

Baron  von  Bieberstcin,  of  Germany,  in  his  memorable 
address  on  arbitration,  followed  M.  Asser's  indorsement 
of  the  proposed  court  by  saying : 

"The  ideal  of  arbitration  between  nations  will  undoubtedly  be 
advanced  if  we  can  succeed  in  improving  and  simplifying  the  proced- 
ure established  by  the  Convention  of  1899  for  resort  to  the  tribunal 
of  The  Hague.  But  the  most  important  reform  would  be  that  which 
is  indicated  by  the  propositions  of  the  United  States  of  America  and 
Russia,  and  which  would  consist  in  giving  to  the  tribunal  of  The 
Hague  the  character  of  a  really  permanent  tribunal.  We  indorse 
completely  the  praise  which  has  been  accorded  to  the  work  of  the 
Hague  tribunal ;  but  we  can  not  shut  our  eyes  to  its  defects.  I  do  not 
desire  to  criticise  it,  but  quite  the  contrary.  It  is  the  great  merit  of 
the  first  conference  to  have  pointed  out  the  road  for  us  to  follow.  A 
veritable  permanent  court,  composed  of  judges  who  by  their  character 
and  competence  will  enjoy  universal  confidence,  will  exert  an  attrac- 
tion, automatic,  so  to  speak,  on  judicial  differences  of  every  kind. 
And  such  an  institution  will  secure  for  arbitration  a  more  frequent 

1  Article  27;   see  page  304. 


412  THE   TWO   HAGUE   CONFERENCES 

and  more  extended  use  than  a  general  arbitration  agreement  which 
must  be  hedged  in  by  exceptions,  reserves,  and  restrictions.  We  are 
ready  to  exert  all  our  efforts  in  working  for  the  accomplishment  of  this 
task.  By  continuing  thus  the  work  of  1899,  the  second  Peace  Con- 
ference will  not  be  inferior  to  the  first ;  and  it  will  justify  the  hope  that 
its  labors  may  contribute  to  the  preservation  of  peace,  by  extending  the 
empire  of  law  and  by  fortifying  the  sentiment  of  international 
justice." 

The  third  and  fourth  addresses  on  the  subject  were 
delivered  by  Ambassador  Choate  and  Dr.  Scott,  of  the 
United  States.  Mr.  Choate  spoke  in  English,  but  a 
resume  of  his  address,  in  French,  was  immediately  read 
by  Baron  d'Estournelles  de  Constant,  of  France.  He 
began  by  quoting  from  a  letter  of  President  Roosevelt 
to  Mr.  Carnegie,  written  at  the  time  of  the  Peace  Congress 
held  in  New  York  City  in  April,  1907,  and  expressive  of 
the  President's  hope  that  the  Permanent  Court  would  be 
greatly  increased  in  power  and  permanency  by  the  ap- 
proaching Peace  Conference.  He  next  touched  upon 
what  was  to  prove  the  supreme  obstacle  to  the  adoption 
of  the  American  plan,  the  selection  of  judges. 

"Our  instructions  are  to  secure,  if  possible,"  he  said,  "a  plan  by 
which  the  judges  shall  be  so  selected  from  the  different  countries  that 
the  different  systems  of  law  and  procedure  and  the  principal  languages 
shall  be  fairly  represented,  and  that  the  court  shall  be  made  of  such 
dignity,  consideration,  and  rank  that  the  best  and  ablest  jurists  will 
accept  appointments  to  it  and  that  the  whole  world  will  have  absolute 
confidence  in  its  judgments." 

Referring  to  the  importance  of  the  work  of  the  first 
conference,  Mr.  Choate  spoke  of  the  fact  that  seventeen 
of  its  members,  and  about  the  same  number  of  members 
of  the  Permanent  Court,  were  members  also  of  the  second 
conference,  and  to  them   he  made  an  especial  appeal  for 


ARBITRATION 


413 


support  in  "building  upon  their  work  a  still  nobler  and 
more  commanding  structure."  As  to  the  incompleteness 
of  the  court  of  1899,  he  said  that  it  had  not  proved  ade- 
quate to  meet  the  progressive  demands  of  the  nations  or 
to  draw  to  the  decision  of  the  Permanent  Court  any  great 
part  of  the  arbitrations  agreed  upon,  —  its  inadequacy 
being  shown  by  the  fact  that  in  the  eight  years  of  its  exist- 
ence only  four  cases  have  been  submitted  to  it,  and  that  of 
the  sixty  judges,  more  or  less,  who  were  named  as  members 
of  the  court,  at  least  two  thirds  have  not,  as  yet,  been  called 
upon  for  any  service.  He  did  not  point  out  in  detail  the 
causes  of  the  insufficiency  of  the  existing  court,  but  referred 
to  the  expense  of  resort  to  it,  and  described  what  he  evi- 
dently considered  its  chief  defect  as  follows : 

"The  fact  that  there  was  nothing  permanent  or  continuous  or  con- 
netted  in  the  sessions  of  the  court,  or  in  the  adjudication  of  the  cases 
submitted  to  it,  has  been  an  obvious  source  of  weakness  and  want  of 
prestige  in  the  tribunal.  Each  trial  it  had  before  it  has  been  wholly 
independent  of  every  other,  and  its  occasional  utterances,  widely 
distant  in  point  of  time  and  disconnected  in  subject-matter,  have  not 
gone  far  towards  constituting  a  consistent  body  of  international  law 
or  of  valuable  contributions  to  international  law,  which  ought  to 
emanate  from  an  international  tribunal  representing  the  power  and 
might  of  all  the  nations.  In  fact  it  has  thus  far  been  a  court  only  in 
name,  a  framework  for  the  selection  of  referees  for  each  particular  case, 
never  consisting  of  the  same  judges.  It  has  done  great  good  so  far  as 
it  has  been  permitted  to  work  at  all,  but  our  effort  should  be  to  try 
to  make  it  the  medium  of  vastly  greater  and  constantly  increasing  bene- 
fit to  the  nations  and  to  mankind  at  large. 

"Let  us,  then,  seek  to  develop  out  of  it  a  Permanent  Court  which 
shall  hold  regular  and  continuous  sessions,  which  shall  consist  of  the 
same  judges,  which  shall  pay  due  heed  to  its  own  decisions,  which  shall 
speak  with  the  authority  of  the  united  voice  of  the  nations  and  gradu- 
ally build  up  a  system  of  international  law,  definite  and  precise,  which 
shall  command  the  approval  and  regulate  the  conduct  of  the  nations." 


414  THE  TWO   HAGUE   CONFERENCES 

Mr.  Choate  then  sketched  in  broad  outline  the  court 
as  planned  by  the  American  proposal,  prefacing  his  sketch 
with  the  statement  that  his  delegation  had  not  attempted 
to  fill  in  all  the  details,  since  these  should  be  the  result 
of  consultation  and  conference  among  all  the  nations; 
he  stated  emphatically,  too,  that  the  proposed  court  was 
not  intended  to  destroy  but  only  to  supplement  the  exist- 
ing court,  and  that  any  nations  who  desired  it  might 
still  resort  to  the  method  of  selecting  arbitrators  provided 
in  1899. 

His  final  appeal  was  an  impressive  one,'  and  was  greeted 
by  hearty  applause. 

"Mr.  President,"  he  said,  "with  all  the  earnestness  of  which  we  are 
capable,  and  with  a  solemn  sense  of  the  obligations  and  responsibili- 
ties resting  upon  us  as  members  of  this  conference,  which  in  a  certain 
sense  holds  in  its  hand  the  fate  and  fortunes  of  the  nations,  we  com- 
mend the  scheme  which  we  have  thus  proposed  to  the  careful  con- 
sideration of  our  sister  nations.  We  cherish  no  pride  of  opinion  as  to 
any  point  or  feature  that  we  have  suggested  in  regard  to  the  constitu- 
tion and  powers  of  the  court.  We  are  ready  to  yield  any  or  all  of  them 
for  the  sake  of  harmony;  but  we  do  insist  that  this  great  gathering  of 
all  the  nations  will  be  false  to  its  trust,  and  will  deserve  that  the  seal 
of  condemnation  shall  be  set  upon  its  work,  if  it  does  not  strain  every 
nerve  to  bring  about  the  establishment  of  some  such  great  and  per- 
manent tribunal  which  shall,  by  its  supreme  authority,  compel  the 
attention  and  deference  of  the  nations  that  we  represent,  and  bring  to 
final  adjudication  before  it  differences  of  an  international  character 
that  shall  arise  between  them,  and  whose  decisions  shall  be  appealed 
to  as  time  progresses  for  the  determination  of  all  questions  of  inter- 
national law.  Let  us  then,  Mr.  President,  make  a  supreme  effort  to 
attain,  not  harmony  only,  but  complete  unanimity  in  the  accomplish- 
ment of  this  great  measure,  which  will  contribute  more  than  any- 
thing else  we  can  do  to  establish  justice  and  peace  on  everlasting 
foundations.  .  .  . 

"Gentlemen,  it  is  now  six  weeks  since  we  first  assembled.     There 


ARBITRATION 


415 


is  certainly  no  time  to  lose.  We  have  done  much  to  regulate  war,  but 
very  little  to  prevent  it.  Let  us  unite  on  this  great  pacific  measure  and 
satisfy  the  world  that  this  second  conference  really  intends  that  here- 
after peace  and  not  war  shall  be  the  normal  condition  of  civilized 
nations." 

Dr.  Scott  began  his  address  by  quoting  Lord  Salisbury's 
explanation  of  why  arbitration  was  not  more  generally 
resorted  to  before  1899  —  the  nations'  lack  of  confi- 
dence, namely,  in  arbitrators'  impartiality  —  and  Secre- 
tary Root's  argument  at  the  New  York  Peace  Congress  in 
favor  of  strengthening  the  court  established  in  1899.  He 
then  pointed  out  the  strength  and  weakness  of  the  latter 
court,  and  took  up  a  detailed  explanation  of  the  proposed 
court,  emphasizing  especially  the  feature  which  he  called 
its  most  important  one,  the  selection  of  its  judges.  "It 
would  appear  at  first  sight,"  he  said,  "that  to  be  truly 
international,  a  court  must  represent  not  one  or  several 
nations,  but  all  of  them.  It  is  no  less  evident  that,  com- 
posed of  a  representative  of  each  independent  and  sover- 
eign state,  it  would  be  impracticable.  Forty-five  judges, 
sitting  together,  may  form,  indeed,  a  judicial  assembly ; 
it  can  not  be  said  that  they  would  constitute  a  court." 
The  American  plan  accordingly  proposed  a  court  of  not 
more  than  seventeen  judges,  nine  of  whom  should  make  a 
quorum.  Taking  up  the  great  problem  of  how  to  choose 
these  seventeen  judges,  Dr.  Scott  first  insisted  emphatically 
upon  the  absolute  equality  of  nations  in  the  view  of  inter- 
national law,  and  then  showed  how,  in  the  adjudication 
of  international  differences,  this  absolute  equality  should 
be  modified  by  differences  in  population  and  material 
interests.  The  American  plan  recognized,  however,  he 
said,  that  the  composition  of  the  court  should  not  be  based 


416  THE  TWO   HAGUE   CONFERENCES 

strictly  on  differences  in  population  and  material  interests, 
but  should  take  into  consideration  the  differences  in 
judicial  systems  and  in  languages  throughout  the  world. 
Professor  de  Martens,  in  presenting  the  Russian  plan 
for  strengthening  the  existing  court,  said  that  he  was  in 
entire  accord  with  Mr.  Choate  "on  the  essential  and  in- 
disputable fact  that  the  existing  Permanent  Court  is  not 
organized  as  it  should  be.  An  improvement  is  requisite, 
and  it  is  our  task  to  accomplish  it,  —  a  task  the  most  im- 
portant, in  my  opinion,  of  all  those  imposed  upon  us." 
He  then  referred  to  the  relatively  small  use  of  the  Per- 
manent Court  and  to  the  Russian  plan  for  requiring  all 
its  members  to  meet  periodically  and  choose  a  permanent 
tribunal  to  be  composed  of  three  of  its  members.  This 
tribunal  would  always  be  ready  to  arbitrate  international 
differences ;  but  it  could  be  disregarded  by  the  powers  in 
dispute,  and  other  arbitrators  be  chosen  from  the  court, 
or  it  could  be  enlarged  to  five,  seven,  or  nine  members. 
M.  de  Martens  stated  the  readiness  of  the  Russian  dele- 
gation to  retire  its  proposition,  as  it  had  done  in  1899,  in 
favor  of  another  plan  as  the  basis  of  discussion;  "for," 
he  said,  "when  one  is  working  for  the  triumph  of  justice 
and  the  welfare  of  humanity,  every  consideration  of  na- 
tional and  personal  pride  or  ambition  should  disappear." 
He  concluded  his  oration  in  these  words : 

"Allow  me  a  few  words  more  from  the  bottom  of  my  heart.  There 
have  always  been  in  history  epochs  when  grand  ideals  have  domi- 
nated and  enthralled  the  souls  of  men ;  sometimes  it  was  religion, 
sometimes  a  system  of  philosophy,  sometimes  a  political  theory.  The 
most  shining  example  of  this  kind  was  the  Crusades.  From  all  coun- 
tries arose  the  cry,  'To  Jerusalem  !  God  wills  it ! '  To-day  the  great 
ideal  which  dominates  our  time  is  that  of  arbitration.  Whenever 
a  dispute  arises  between  the  nations,  even  though  it  be  not  amenable 


ARBITRATION  417 

to  arbitration,  we  hear  the  unanimous  cry,  ever  since  the  year  1899, 
'To  The  Hague!  To  The  Hague!'  If  we  are  all  agreed  that  this 
ideal  shall  take  body  and  soul,  we  may  leave  The  Hague  with  up- 
lifted head  and  peaceful  conscience;  and  History  will  inscribe  within 
her  annals:  'The  members  of  the  second  Peace  Conference  have  de- 
served well  of  humanity.'" 

This  inspiring  appeal  was  greeted  with  prolonged  ap- 
plause, which  was  renewed  when  Baron  von  Bieberstein 
repeated  briefly  but  emphatically  that  it  was  his  country's 
desire  to  "accept  the  generous  principles  defended  so 
eloquently  by  the  delegates  of  the  United  States  of  Amer- 
ica." M.  de  la  Barra,  of  Mexico,  and  Sir  Edward  Fry, 
of  Great  Britain,  then  spoke  briefly,  the  first  offering  a 
minor  amendment  to  the  American  plan,  but  expressing 
his  "enthusiastic  adherence  to  every  proposition  designed 
to  give  more  prestige  to  the  Permanent  Court  and  to 
facilitate  access  to  it" ;  and  the  second  saying,  in  six  lines, 
that  the  British  delegation  did  not  hesitate  to  give  its 
cordial  support  to  the  principle  of  the  American  proposal. 

Two  delegates  from  Argentina  spoke  next ;  one  ad- 
vocated the  resolution  offered  by  his  delegation  requesting 
the  executive  heads  of  governments  not  to  accept  the 
office  of  arbitrator  until  after  a  recourse  to  the  Hague 
court  has  been  rejected,  and  illustrated  his  argument  by 
the  example  of  President  Roosevelt  at  the  time  of  the 
dispute  between  Venezuela  and  Germany,  Great  Britain, 
and  Italy;  the  other  indorsed,  in  principle,  the  American 
proposition  as  to  a  permanent  court  and  suggested  that 
in  the  method  of  selecting  its  judges  William  Penn's 
plan  of  apportioning  representation  according  to  the 
amount  of  the  foreign  commerce  of  each  state  should 
be  adopted,  for  the  reason  that  "commerce  and  production 


418      THE  TWO  HAGUE  CONFERENCES 

are  certainly  the  best  exponents  of  the  vitality,  intelligence, 
industry,  and  progress  of  nations." 

At  the  opening  of  the  next  meeting  of  the  subcommission, 
Mr.  Choate  accepted  not  only  the  spirit  but  the  letter  of 
the  Mexican  amendment  to  the  American  plan,  and  said 
that  it  indicated  clearly  the  design  of  that  plan,  which  was 
to  leave  the  states  free  to  apply  either  to  the  existing  court 
of  arbitration,  or  to  the  proposed  court,  or  to  any  other 
means  of  settling  their  differences  in  a  peaceful  manner. 

M.  Beernaert,  of  Belgium,  a  distinguished  jurisconsult 
and  influential  member  of  the  first  Peace  Conference, 
and  a  representative  from  one  of  the  "smaller  powers," 
then  arose  and  struck  the  first  public  note  of  opposition 
to  the  proposed  court.  In  reply  to  the  criticisms  of  the 
existing  Permanent  Court,  especially  those  of  Professor 
de  Martens,  he  praised  that  court  highly,  and  frankly 
expressed  his  preference  for  it  as  against  the  one  proposed. 
The  question  at  issue,  he  said,  was  the  same  as  that  "long 
debated  in  1899,"  namely,  "Is  it  better  to  establish  a  truly 
permanent  international  tribunal,  in  which  judges  few 
in  number,  and  immovable  or  nearly  so,  will  have  to 
decide  the  disputes  of  the  various  states  of  the  whole 
civilized  world?"  The  proposition  to  answer  this  ques- 
tion in  the  affirmative  he  considered  in  line  with  those  "  vast 
projects,  according  to  which  the  reorganized  world  shall 
form  henceforth  a  single  state,  or  at  least  a  federation  of 
states,  having  a  single  parliament,  a  single  executive, 
a  single  superior  court  of  justice.  ...  In  my  opinion, 
this  is  the  lamentable  exaggeration  of  ideas  which  are 
true  in  themselves  and  which  do  honor  to  our  century. 
They  are  moving  across  the  world  at  this  moment  in 
great  waves  of  fraternity  and  solidarity.     Men  of  different 


ARBITRATION  419 

races  know  each  other  now,  and  are  no  longer  enemies. 
An  assembly  like  this,  of  which  our  fathers  did  not  even 
dream,  astonishes  no  one.  This  is  the  result  of  the 
enormous  progress  of  all  the  sciences,  which  have  anni- 
hilated distance,  intertwined  interests,  and  mingled  the 
races.  But,  on  the  other  hand,  never  has  the  feeling  of 
nationality  been  more  alive,  and  old  nations  and  old 
tongues,  which  were  believed  to  be  asleep,  have  been 
seen  to  arise  and  demand  again  their  place  in  the  sun- 
shine. None  of  us  would  wish  to  renounce  his  country,  — 
his  country,  fond  and  dear,  and  none  of  us  would  consent 
to  be  governed  from  a  great  distance.  We  must,  then,  I 
believe,  discard  as  a  mere  Utopia  the  dream  of  a  world 
state  or  a  universal  federation,  of  a  single  parliament 
and  a  court  of  justice  superior  to  the  nations." 

M.  Beernaert  then  took  up  the  knotty  question  of  the 
method  of  selecting  the  judges  and  struck  the  keynote 
which  was  destined  to  be  harped  upon  constantly  until 
the  end  of  the  discussion.  "The  larger  number  of  na- 
tions," he  said,  "would  not  have  a  judge  of  their  own  on 
the  tribunal,  and  how  can  it  command  their  confidence?" 

M.  Beernaert's  address  was  greeted  with  prolonged 
and  repeated  applause,  and  the  representatives  of  the 
smaller  powers  arose  one  after  the  other  to  express  their 
doubts  and  make  their  reservations,  especially  that  based 
on  absolute  international  equality.  The  representatives 
of  Mexico,  Servia,  Haiti,  Venezuela,  Brazil,  Bulgaria, 
Portugal,  Roumania,  and  Uruguay  all  voiced  the  deter- 
mination of  the  smaller  powers  to  secure,  by  one  method 
or  another,  international  equality  in  the  selection  of  judges, 
or,  failing  this,  to  reject  the  plan  of  a  new  tribunal.  Some 
of   these    representatives   suggested   plans   by   means   of 


420  THE  TWO   HAGUE   CONFERENCES 

which  they  believed  the  desired  equality  could  be  secured, 
and  the  Russian  proposal  that  the  Permanent  Court 
should  select  the  arbitral  tribunal  was  indorsed  by  the 
delegates  from  Haiti,  Venezuela,  and  Bulgaria.  M.  Ruy 
Barbosa,  of  Brazil,  made  a  long  argument  against  the 
establishment  of  a  tribunal  which  would  supersede  all 
other  arbitral  tribunals,  and  insisted  on  the  principle  of 
international  equality  in  the  constitution  of  the  new 
tribunal  itself. 

Panama  and  Persia  *  were  the  only  small  powers  that 
tried  to  stem  the  tide  of  anxiety  and  dissent.  Sir  Edward 
Fry,  speaking  after  M.  Barbosa,  stated  in  his  character- 
istically short  and  decisive  manner  that  there  was  not  the 
slightest  intention  to  supplant  the  court  of  1899  or  any 
other:  "The  choice  of  the  nations  will  remain  free,"  he 
said,  "and  it  is  very  sure  that  the  most  efficient  court  will 
be  chosen."  M.  Bourgeois,  of  France,  whose  words  of 
praise  for  the  existing  court  had  been  quoted  by  several 
speakers  in  opposition  to  the  proposed  tribunal,  also  made 
one  of  his  characteristically  conciliating  and  eloquent  ap- 
peals in  behalf  of  the  American  proposition.  While  em- 
phasizing the  praise  he  had  bestowed  upon  the  existing 
court,  which  he  believed  would  continue  to  be  most  useful 
for  the  settlement  of  grave  political  differences,  he  insisted 
upon  the  great  desirability  of  the  proposed  court  for  the 
settlement  of  many  important  differences  of  a  judicial 
nature. 

"We  shall  hope  for,  and  we  shall  greet  with  joy,"  he  said,  "the 
day  when,  beside  the  court  of  1899,  or  better,  at 'its  own  fireside  and 
perhaps  created  by  itself,  there  shall  exist  a  permanent  tribunal  for 

1  The  Persian  delegation  later  protested  to  the  committee  of  examination 
against  the  "  judicial  inequality  "  of  the  proposed  court. 


ARBITRATION  421 

affairs  of  a  judicial  kind,  under  such  conditions  that  the  smallest  as 
well  as  the  largest  states  shall  find  in  it  equal  guarantees  for  the 
definition  and  security  of  their  rights.  .  .  . 

"The  world  desires  peace.  For  centuries  it  clung  solely  to  the 
motto,  'If  you  desire  peace,  prepare  for  war';  that  is  to  say,  it  con- 
fined itself  to  the  military  organisation  of  peace.  We  are  no  longer 
at  that  stage  of  progress ;  but  we  must  not  be  content  with  promoting 
the  more  humane  organization,  the  peaceful  organization  of  war 
[That  is,  in  the  other  commissions  of  the  conference,  to  whose  work 
he  had  just  alluded].  The  words  which  have  been  uttered  here  have 
showed  us  the  progress  of  education  in  this  respect,  the  feeling,  new 
and  each  day  more  urgent,  of  the  solidarity  of  men  and  nations  in  the 
struggle  with  the  fatalities  of  nature.  We  have  confidence  in  the 
growing  activity  of  these  great  moral  forces,  and  we  hope  that  the 
Conference  of  1907  will  take  a  decisive  step  beyond  the  work  under- 
taken in  1899  by  insuring  practically  and  really  the  judicial  organi- 
zation of  peace." 

Under  the  influence  of  this  appeal,  the  commission  re- 
ferred the  American  proposition  to  the  committee  of  exami- 
nation by  a  vote  of  twenty-eight  (including  seven  of  the 
delegations  which  had  made  reservations),  with  twelve 
abstentions  (including  three  of  the  delegations  which  had 
made  reservations). 

Ten  days  after  this  reference  the  committee  entered  upon 
the  discussion  of  the  plan,  and  devoted  five  weeks  to  its 
consideration.  This  committee  (B)  was  composed  of 
twenty-three  members,  representing  sixteen  countries,1 
and  was  presided  over  by  M.  Bourgeois,  with  Dr.  Scott 
as  reporter.2  The  American  plan,  amended  in  such  manner 
by  the  delegations  of  Great  Britain  and  Germany  that  it 

1  Seven  of  these  were  "large  powers,"  and  nine  were  small. 

2  Dr.  Scott  presented  an  able  report  on  the  articles  adopted  by  this  com- 
mittee under  the  motto,  "Inter  leges  silent  arma";  but,  in  practical  applica- 
tion of  this  motto,  it  is  silent  on  the  conflict  of  opinions  regarding  the  constitu- 
tion of  the  court. 


422 


THE   TWO   HAGUE   CONFERENCES 


was  called  by  the  name  of  all  three  of  these  powers,  was  the 
basis  of  the  committee's  discussion.  Many  of  the  most 
eminent  members  of  the  conference  took  part  in  this  dis- 
cussion, and  as  a  result  of  it  thirty-five  articles  were  agreed 
upon  which  were  adopted  by  the  commission  and  the  con- 
ference. These  articles  provide  for  the  qualifications,  term 
of  office,  privileges,  and  salary  of  the  judges,  the  name,  place 
of  meeting,  sessions,  reports,  jurisdiction,  and  procedure 
of  the  court,  and  for  the  assistance  to  be  rendered  to  it 
by  the  Administrative  Council  and  International  Bureau, 
created  in  1899,  and  by  a  new  special  delegation  of  three 
of  the  judges  elected  annually. 

So  carefully  and  thoroughly  were  the  various  needs  of  the 
new  court  provided  for  by  these  articles  that  Dr.  Scott  said 
in  his  report  of  the  committee  which  formulated  them  : 
"We  have  not  only  wished  to  erect  the  fine  facade  of  the 
Palace  of  International  Justice;  we  have  built  and  even 
furnished  the  structure  in  such  fashion  that  the  judges 
have  only  to  take  their  seats." 

But,  important  though  these  articles  may  become  in  the 
future  and  interesting  though  they  are  in  themselves  at 
present,  it  would  be  out  of  place  to  discuss  them  here; 
for,  although  they  were  adopted  in  the  commission  by  a 
vote  of  thirty-eight  to  three,  with  three  abstentions,  and  in 
a  plenary  session  of  the  conference  by  a  vote  of  thirty- 
eight  ayes,  with  six  abstentions,1  they  are  only,  as  various 
delegates  called  them,  a  building  without  foundations,  a 
locked  door  without  a  key,  a  machine  without  power. 
They  provide,  in  fact,  a  court  without  judges.     For  the 

1  In  the  commission,  the  negative  vote  was  cast  by  Belgium,  Roumania, 
and  Switzerland,  while  Denmark,  Greece,  and  Uruguay  abstained;  and  from 
the  conference  vote  all  of  these  six  powers  abstained. 


ARBITRATION  423 

number  and  method  of  selection  of  the  judges  could  not 
be  agreed  upon ;  and  these  features  of  the  proposed  court 
both  its  advocates  and  opponents  agreed  in  calling  its 
capital,  its  fundamental,  its  essential  ones. 

The  intense  struggle,  on  the  one  hand,  to  find  some  method 
of  solving  these  two  problems,  and,  on  the  other  hand,  to 
prevent  their  solution  on  any  other  basis  than  that  of  the 
absolute  equality  of  sovereign  states,  began  in  the  first 
meeting  of  the  committee  and  was  carried  through  to  its 
last.  It  was  marked  by  learned  speeches  and  dramatic 
appeals,  and  by  the  entire  abstention  on  the  part  of  some 
of  the  members  from  any  discussion  of  the  project  in  the 
absence  of  a  satisfactory  solution  of  these  fundamental 
problems.  Mr.  Choate,  ably  seconded  by  Dr.  Scott's 
profound  knowledge  of  international  law,  was  the  persist- 
ent, eloquent,  resourceful  champion  of  the  progressive 
majority  which  was  determined  to  find  some  way  out ;  and, 
while  proposing  a  plan  on  behalf  of  the  American  delega- 
tion, showed  and  proved  his  willingness  to  discuss  and  adopt 
any  other  plan  which  seemed  applicable  to  the  purpose  in 
view.  The  plan  he  proposed  was  that  each  power  should 
appoint  one  judge ;  that  the  eight  judges  selected  by  the  eight 
"large powers"  should  sitas  membersof  the  courtduring  the 
entire  term  of  twelve  years;  that  the  judges  appointed  by 
the  other  powers  should  sit  for  periods  of  one,  two,  four,  or 
ten  years,  so  that  the  court  should  be  composed  of  only 
seventeen  judges  at  any  one  time.  The  classification  of 
the  "other  powers"  into  four  divisions  (the  one-,  two-, 
four-,  and  ten-year  divisions)  was  a  very  ingenious  one  and 
was  based  on  the  differences  in  population,  language,  and 
jurisprudence,  etc.,  to  which  Mr.  Choate  and  Dr.  Scott  had 
referred  in  the  subcommission. 


424  THE   TWO   HAGUE   CONFERENCES 

M.  Ruy  Barbosa  was  the  insistent,  learned,  passion- 
ate opponent  of  this  plan  and  the  recognized  champion 
of  the  absolute  equality  of  sovereign  states.  At  one  time 
during  the  committee's  deliberations  he  proposed,  as  a  com- 
promise plan,  the  reduction  of  the  number  of  judges  sitting 
at  any  one  time  to  fifteen,  thus  enabling  one  third  of  the 
forty-five  judges  elected  to  sit  for  four  years,  the  judges  to 
alternate  according  to  the  alphabetical  arrangement  of  the 
countries  appointing  them.  But  he  later  withdrew  this 
plan  and  avowed  his  preference  for  the  old  court  as  against 
any  new  one,  and  his  determination  to  reject  every  plan  not 
based  on  the  absolute  equality  of  sovereign  states. 

M.  Barbosa 's  thoroughly  conscientious  and  able  opposi- 
tion was  supported  by  various  other  members  of  the  com- 
mittee, and,  although  none  of  the  numerous  plans  sug- 
gested by  Mr.  Choate  were  really  discussed,  some  of  the 
advocates  of  the  new  court  began  to  despair  of  arriving  at 
any  conclusion  whatever.  At  last  Sir  Edward  Fry  moved 
a  resolution  that,  "The  conference  deems  it  desirable  that 
the  signatory  powers  adopt  the  project  for  the  establish- 
ment of  a  Court  of  Arbitral  Justice,  with  the  exception  of 
the  rules  which  have  to  do  with  the  nomination  of  the 
judges  and  their  rotation  in  office."  Mr.  Choate. opposed 
this  as  the  counsel  of  despair,  and  made  one  more  proposi- 
tion providing  for  the  election  of  fifteen  judges  by  the  forty- 
five  powers,  each  having  one  vote ;  but  this  proposition 
was  voted  down,  and  Mr.  Choate  then  submitted  to  the 
inevitable  by  accepting  Sir  Edward  Fry's  resolution.  This 
resolution,  however,  he  moved  to  amend  in  a  radical  fashion 
by  substituting  for  the  words,  "The  conference  deems  it 
desirable  that  the  signatory  powers  adopt  the  project," 
the  words,  "The  conference  adopts  the  project,  and  recom- 


ARBITRATION  425 

mends  to  the  powers  to  make  an  agreement  on  the  means 
of  choosing  the  judges  and  constituting  the  court."  The 
latter  part  of  this  motion  was  adopted,  and  on  the  suggestion 
of  M.  Nelidow,  the  first  part  of  the  resolution  was  phrased, 
"The  conference  recommends  to  the  signatory  powers  the 
adoption  of  the  project  voted  by  it,  .  .  ."  and  in  this  form 
it  was  adopted  by  the  committee,  commission,  and  con- 
ference. 

When  the  committee's  report  was  presented  to  the  com- 
mission, it  became  the  subject  of  another  animated  debate, 
or  rather  was  made  the  opportunity  of  emphasizing  the 
absolute  equality  of  sovereign  states  in  the  view  of  inter- 
national law,  and  a  refusal  to  adopt  the  proposed  court  on 
any  other  basis.  The  delegations  of  Mexico,  the  Dominican 
Republic,  Brazil,  Guatemala,  Norway,  China,  Persia,  Siam, 
Chili,  and  Haiti  stated  their  willingness  to  vote  for  the  com- 
mittee's report  on  that  basis;  the  delegations  of  Switzer- 
land, Belgium,  and  Roumania  stated  that  they  would  vote 
against  the  report  even  on  the  basis  of  equality;  while 
those  of  Denmark,  Uruguay,  Venezuela,  and  Greece  em- 
phasized the  equality,  but  said  they  would  abstain  from 
the  vote. 

M.  Barbosa,  in  another  long  and  forceful  address,  em- 
phasized the  universal  acceptance  and  the  justification  of 
the  theory  of  the  absolute  equality  of  sovereign  states  in  the 
eyes  of  international  law  ;  he  also  denied  "  the  quarrelsome 
humorand  political  imbecility  "attributed  in  thenewspapers 
to  Latin  America  in  its  alleged  "hostility  to  the  United 
States  of  America,"  and  dwelt  upon  the  friendship  which 
existed  especially  between  the  United  States  of  America 
and  the  United  States  of  Brazil,  reminding  the  conference 
that  the  Brazilian  delegation  had  cordially  supported  the 


426  THE   TWO   HAGUE   CONFERENCES 

American  delegation  in  its  efforts  to  secure  immunity  for 
private  property  on  the  sea,  arbitration  for  contractual  debts, 
obligatory  arbitration,  and  the  periodical  meeting  of  the 
Peace  Conferences,  while  it  had  opposed  it  only  on  the  ques- 
tion of  the  Court  of  Arbitral  Justice  and  the  International 
Prize  Court. 

M.  Barbosa's  statesmanlike  address  was  put  in  a  still 
more  favorable  light  by  the  ironical  and  triumphant  speech 
of  M.  Beldiman,  of  Roumania,  who  insisted  that  the  pro- 
ject for  the  court  had  met  with  entire  failure  and  who 
exulted  over  the  defeat  of  the  American  delegation  in 
regard  to  it. 

Mr.  Choate  made  one  short  final  appeal  to  the  small 
minority  that  had  voted  against  the  project  itself,  to  make 
the  vote  for  the  resolution  unanimous,  and  M.  Nelidow, 
president  of  the  conference,  added  his  plea  as  well ;  but 
the  vote  was  maintained  as  before,  —  thirty-eight  to  three, 
with  three  abstentions,  although  in  the  plenary  session  of 
the  conference  the  negative  votes  were  changed,  as  in  the 
vote  on  the  project,  to  abstentions. 

One  final  slight  victory  was  secured  for  the  court  in 
the  commission  which  decided  that  the  recommendation  of 
it  should  be  called  in  the  Final  Act,  not  a  "Desire"  (vceu), 
as  the  minority  wished,  but  a  "Declaration,"  as  was  done  in 
the  first  conference  in  the  case  of  the  resolutions  relating 
to  the  use  of  "dumdum"  bullets,  asphyxiating  gases,  and  the 
launching  of  projectiles  from  balloons.  But  this  triumph 
was  only  a  temporary  one,  for,  in  accordance  with  precedent, 
it  could  figure  only  as  a  "Desire"  in  the  Final  Act  if 
any  power  objected  to  its  being  called  a  "Declaration,"  and 
this  objection  was  made  by  Switzerland, 


ARBITRATION  427 

4.  The  International  Prize  Court 
The  Conference  of  igoy 

At  the  second  plenary  session  of  the  conference  —  the 
first  business  one  —  Baron  Marschall  von  Bieberstein,  of 
Germany,  electrified  the  members  by  declaring  that  his 
government  had  instructed  him  to  present  to  the  confer- 
ence propositions  concerning  the  establishment  of  an  inter- 
national court  to  decide  on  the  legality  of  captures  made 
in  naval  war,  the  said  court  to  be  a  high  court  of  justice 
functioning  as  a  court  of  appeal,  while  national  tribunals 
should  deliberate  in  the  first  instance.  Sir  Edward  Fry, 
of  Great  Britain,  immediately  arose  and  expressed  the  great 
satisfaction  with  which  he  had  listened  to  the  statement  of 
his  German  colleague,  and  said  that  the  British  delegation 
had  received  instructions  of  the  same  kind.  General  Por- 
ter, of  the  United  States,  before  submitting  the  American 
proposition  concerning  the  forcible  collection  of  debts,  also 
cordially  indorsed  the  German  suggestion. 

At  the  first  session  of  the  I  Commission,  the  German 
and  British  plans  for  the  proposed  court  were  presented, 
and  were  referred  to  the  commission's  second  subcom- 
mission,  whose  sole  duty  it  was  to  deliberate  and  decide 
upon  this  question. 

The  two  plans  were  found  to  have  the  common  object 
of  permitting  an  appeal  from  the  decision  of  national  prize 
courts,  but  each  sought  to  attain  this  object  in  a  different 
way.  A  committee  of  three  members  !  was  accordingly 
appointed  to  draw  up  a  list  of  questions  based  on  the  differ- 

1  Sir  Edward  Fry,  Dr.  Kriegc,  of  Germany,  and  Professor  Renault,  of 
France. 


428  THE   TWO   HAGUE   CONFERENCES 

ences  in  the  two  plans,  these  questions  to  be  answered  by 
the  subcommission,  and  the  answers  to  form  the  basis  of  a 
common  agreement. 

The  first  question,  Shall  an  international  court  of  appeal 
for  prizes  be  established,  was  answered  by  the  Baron  von 
Bieberstein,  in  his  opening  speech  before  the  subcommis- 
sion, as  follows: 

"According  to  a  principle  universally  admitted  in  the  law  of  na- 
tions, every  maritime  prize  must  be  confirmed  by  a  judicial  decision. 
At  present,  this  decision  proceeds  exclusively  from  the  jurisdiction  of 
the  captor's  government.  It  is  this  government  which  establishes  the 
tribunals  and  usually  the  procedure.  Whatever  may  be  the  organiza- 
tion of  this  jurisdiction  in  the  various  countries,  it  can  not  be  denied 
that  this  state  of  things  is  not  satisfactory  and  is  associated  with  grave 
inconveniences  from  the  point  of  view  both  of  the  principles  of  jus- 
tice and  equity,  and  of  the  interests  of  individuals,  as  well  as  from  that 
of  the  interests  of  neutral  states  and  of  the  belligerents  themselves. 

"Prizes  are  made  in  the  name  of  the  state  and,  in  principle,  for 
the  account  of  the  state.  Hence,  in  the  inquest  as  to  the  validity 
of  the  prize,  the  role  of  the  captor  state  is  that  of  the  defendant.  Its 
interest  is  engaged  in  having  the  prize  declared  valid;  it  is  a  question 
of  securing  for  the  state  the  profit  of  the  prize ;  the  state  must  dread, 
quite  naturally,  to  see  the  military  acts  of  its  armed  forces  nullified  and 
declared  illegal.  The  prize  tribunals  established  by  the  captor  state 
act  involuntarily  more  or  less  under  the  influence  of  these  interests  of 
their  country.  At  all  events,  these  national  tribunals  do  not  enjoy 
that  high  judicial  authority  which  is  based  on  confidence  in  the  entire 
independence  and  impartiality  of  judges. 

"It  is  a  natural  consequence  of  this  state  of  things  that  the  national 
adjudication  of  prizes  gives  rise  to  constant  disputes  between  the  bel- 
ligerents themselves,  and  with  neutral  nations;  and  these  disputes 
do  not  cease  to  envenom  international  relations. 

"It  is,  then,  highly  desirable  that  an  international  jurisdiction  be 
established,  whose  impartiality  can  not  be  doubted.  Its  purpose  is 
twofold :  first,  to  protect  the  rights  of  individuals ;  second,  —  and 
this  is  a  very  important  one,  —  to  relieve  the  captor  state  from  re- 


ARBITRATION  429 

sponsibility  for  the  adjudication  of  prizes,  which  can  thenceforth  be- 
come no  longer  the  subject  of  diplomatic  claims.  It  is  this  twofold 
purpose  which  is  sought  by  the  German  project  now  within  your 
hands,  which  proposes  to  internationalize  jurisdiction  over  prizes 
by  the  establishment  of  an  International  High  Court,  composed  of 
representatives  of  the  belligerent  powers  and  of  neutral  states,  and 
summoned  to  pass,  in  the  second  and  last  instance,  on  the  legality  of 
prizes  adjudged,  in  the  first  instance,  by  the  national  tribunals  of 
belligerent  powers.  .  .  . 

"We  have  confidence  that  the  conference  will  succeed  in  finding 
the  right  solution  of  the  problems  connected  with  the  jurisdiction  of 
prizes.  And  we  shall  be  happy  to  cooperate  in  a  spirit  of  conciliation 
with  our  colleagues  in  the  achievement  of  this  noble  task.  The  good 
reception  which  has  been  accorded  to  our  plan  by  two  of  the  largest 
maritime  powers  confirms  our  confidence." 

Sir  Edward  Fry,  in  replying  Yes  to  the  first  question, 
said  that,  "in  the  present  state  of  things,  each  nation  pro- 
claims for  itself  what  it  believes  to  be  international  law ; 
the  courts  of  each  country  thus  feel  bound  by  their  national 
system  of  jurisprudence  in  regard  to  prizes.  In  order  that 
an  international  court  may  apply  the  veritable  international 
law,  its  members  must  be  free  from  all  prejudice  and  from 
all  partiality." 

M.  Ruy  Barbosa,  of  Brazil,  inquired  why  the  proposed 
court  should  be  one  of  appeal  only;  but,  while  expressing 
the  hope  of  a  future  agreement  which  would  establish  both 
original  and  appellate  jurisdiction,  he  also  answered  Yes 
to  the  first  question.  M.  Tsudzuki,  of  Japan,  while  ex- 
pressing his  cordial  indorsement  of  the  proposed  court  as 
an  ideal  to  be  striven  for,  said  that  his  delegation  would 
abstain  from  voting  for  such  a  court  until  a  clear  and  pre- 
cise code  of  international  prize  law  should  be  agreed  upon. 
This  objection  had  already  been  anticipated  by  Baron  von 
Bieberstein  in  his  opening  speech,  and  had  been  answered 


43° 


THE   TWO   HAGUE   CONFERENCES 


by  the  statement  that  the  Declaration  of  Paris  of  1856 
and  certain  treaties  had  already  become  the  basis  of  a  con- 
ventional law  on  the  subject,  and  that  he  had  strong  hopes 
that  the  conference  would  complete  or  amplify  the  code. 
M.  Hammarskjold,  of  Sweden,  indorsed  the  proposed  court 
as  "One  of  the  greatest  steps  of  progress,  and  one  of  the 
richest  in  its  promise  for  the  future,"  and  begged  that  the 
plan  be  not  halted  by  difficulties  of  a  rather  doctrinaire 
character. 

At  a  little  later  stage  of  the  discussion,  Ambassador 
Choate  expressed  the  American  delegation's  cordial  in- 
dorsement of  the  project  by  saying: 

"  Representing  as  we  do  a  widely  extended  maritime  nation,  and  a 
nation  which  hopes  and  confidently  expects  always  in  the  future  to  be 
a  neutral  nation,  we  deem  the  establishment  of  an  international  court 
of  prize  by  this  conference  to  be  a  matter  of  supreme  importance.  .  .  . 
It  will  certainly  be  a  tremendous  triumph  of  justice  and  peace  if  this 
conference,  before  it  dissolves,  shall  succeed  in  creating  such  an  arbiter 
between  the  nations.  .  .  .  One  great  international  court  will  be  a 
marked  advance  in  the  progress  of  the  world's  peace,  and  will  go  far 
to  satisfy  the  universal  demand  which  presses  upon  us  so  strongly 
from  every  section  of  the  world." 

Mr.  Choate 's  address  was  designed  to  secure  a  compro- 
mise between  the  divergent  features  of  the  German  and 
British  plans,  and  he  moved  to  refer  the  two  plans  to  a  com- 
mittee of  examination  to  decide  upon  this  compromise. 
This  motion  was  adopted,  but  not  until  the  divergence  of 
view  had  been  plainly  revealed. 

The  question,  Whether  the  court  should  have  juris- 
diction only  between  two  governments  or  between  one  gov- 
ernment and  individual  citizens  of  another,  was  answered 
by  Sir  Edward  Fry  in  the  first  sense,  for  the  reason  that  in 


ARBITRATION  43 1 

an  international  court  it  is  logical  that  only  governments, 
and  not  individuals,  should  be  suitors.  Dr.  Kriege,  of 
Germany,  on  the  other  hand,  argued  that  injured  individ- 
uals and  not  their  government  should  come  before  the  court, 
and  for  the  following  reasons  :  this  would  prevent  a  dispute 
between  two  governments,  and  would  prevent  a  prize  case 
from  being  exaggerated  into  an  arbitration ;  it  would  pre- 
vent a  claimant  state  from  being  forced  into  the  embarrass- 
ing position  of  either  neglecting  the  defense  of  its  citizens' 
interests,  where  it  was  impossible  to  make  a  careful  exami- 
nation of  their  claims,  or  of  supporting  ill-founded  claims ; 
it  would  enable  individuals  to  apply  to  the  court  without 
difficulty,  and  yet,  by  requiring  them  to  bear  the  expense 
of  unsustained  suits,  they  would  be  deterred  from  presenting 
ill-founded  claims.  M.  Hagerup,  of  Norway,  and  Colonel 
Borel,  of  Switzerland,  in  adopting  the  German  view  of  this 
question,  added  the  arguments  that  small  powers  would 
often  be  stopped  by  political  considerations  from  making 
an  appeal  on  behalf  of  their  citizens,  and  that  individual 
appeal  is  in  line  with  the  progress  of  international  law. 

M.  Bustamente,  of  Cuba,  proposed  as  a  compromise  to 
permit  both  individuals  and  their  governments  to  apply  to 
the  court ;  and  Mr.  Choate,  while  favoring  the  right  of 
individual  suitors,  suggested  that  the  question  might  be 
left  to  the  determination  of  each  country.  The  compro- 
mise actually  adopted  was  that  governments  could  institute 
the  suit  in  some  specified  classes  of  cases,  and  that  indi- 
viduals could  do  so  in  other  specified  classes,  unless  for- 
bidden to  do  so  by  their  own  governments. 

The  next  question,  Whether  the  court  should  have 
jurisdiction  over  all  cases  of  capture,  or  over  only  those  in 
which  neutrals  are  concerned,  was  answered  by  Sir  Ed- 


432  THE   TWO   HAGUE   CONFERENCES 

ward  Fry  in  the  latter  sense,  for  the  reasons  that  a  state  of 
war  suspends  certain  relations  of  law  between  belligerents 
and  that  there  are  certain  questions  between  belligerents 
which  can  not  be  submitted  to  an  international  court.  Dr. 
Kriege,  on  the  other  hand,  favored  the  opening  of  the  court 
to  the  citizens  of  belligerent  states,  as  well  as  to  neutrals, 
because  this  would  conform  to  the  modern  idea  of  war, 
according  to  which  the  inhabitants  of  the  enemy's  territory 
are  not  placed  outside  of  law  ;  and  because  an  international 
application  is  desirable  for  such  international  conventions 
as  the  Declaration  of  Paris  that  the  "neutral  flag  covers  the 
enemy's  goods,"  and  America's  proposed  rule  abolishing 
the  capture  of  the  enemy's  private  property.  Mr.  Choate 
admitted  the  resort  of  both  neutrals  and  belligerents  to  the 
court,  but  emphasized  the  impossibility  of  permitting  the 
citizen  of  a  belligerent  power  to  appeal  to  the  international 
court  from  the  decision  of  the  courts  of  his  own  country 
condemning  him  for  a  violation  of  its  own  laws,  such  as,  for 
example,  its  foreign  enlistment  act,  or  for  an  attempt  to  vio- 
late a  blockade  established  by  it. 

The  compromise  adopted  in  this  case  provided  for  the 
appeal  both  of  neutrals  and  of  belligerents  in  certain  classes 
of  cases.  Thus  the  right  of  appeal  of  both  neutral  states 
and  citizens  is  fully  admitted,  in  recognition  of  the  fact  that 
the  court  is  established  preeminently  in  the  interests  of  neu- 
trals ;  while  the  right  of  both  belligerent  states  and  citizens 
is  admitted  under  carefully  defined  conditions. 

The  next  question  was,  When  shall  the  role  of  the  inter- 
national court  commence  :  directly  after  the  national  prize 
courts  of  first  instance  have  rendered  their  decision,  or  not 
until  the  highest  national  court  has  rendered  its  decision  ? 
Sir  Edward  Fry  recalled  the  fact  that  certain  large  maritime 


ARBITRATION  433 

states  possess  prize  courts  of  long  standing  and  high  renown, 
for  example,  the  Supreme  Court  of  the  United  States  and 
the  British  Committee  of  the  King's  Privy  Council;  and 
for  this  reason  argued  that  the  international  court  should 
not  have  jurisdiction  over  cases  until  such  national  courts 
had  passed  upon  them.  This  course  also,  he  said,  would 
give  the  international  court  the  benefit  of  the  nation's 
brightest  legal  lights.  Dr.  Kriege  admitted  the  theoretical 
justice  of  Sir  Edward  Fry's  proposal,  but  claimed  that  it 
would  give  rise  to  practical  and  political  difficulties;  for 
example,  it  would  render  the  procedure  singularly  slow  and 
expensive,  the  examination  of  evidence  and  the  rendering 
of  sentence  often  requiring  several  years;  and  hence  the 
amount  of  capital  represented  by  the  ship  and  cargo  seized, 
which  is  often  very  considerable,  would  be  paralyzed,  in- 
stead of  speedily  released,  as  the  modern  condition  of 
commerce  requires.  Moreover,  the  well-known  political 
interests  of  the  captor  state  require  that  only  the  decisions 
of  its  lower,  and  not  of  its  highest,  courts  should  be  reviewed 
by  an  international  court.  Mr.  Choate  expressed  his 
opinion  very  decidedly  in  favor  of  the  British  answer  to 
this  question,  "because,"  he  said,  "our  people,  by  history 
and  tradition,  are  so  much  in  love  with  the  Supreme  Court 
of  the  United  States,  which  they  so  believe  to  be  the  tribunal 
in  which  the  gladsome  light  of  jurisprudence  rises  and  sets, 
and  to  be  a  court  which  commands  the  almost  equal  re- 
spect and  admiration  of  other  nations,  that  we  could  hardly 
go  home  in  safety  with  the  report  that  we  had  unnecessarily 
consented  to  any  plan  which  would  leave  that  court  out  of 
the  administration  of  prize  law.  I  think  we  may  state, 
without  contradiction,  that  in  the  last  hundred  years  it 
has  taken  a  very  considerable  part  in  the  making  of  the 


434  THE  TWO   HAGUE   CONFERENCES 

prize  law  which  now  constitutes  a  portion  of  the  established 
international  law  of  the  world,  and  that  its  decisions  in  prize 
are  in  substantial  conformity  with  the  decisions  of  all  the 
maritime  jurisdictions  which  have  dealt  with  the  subject, 
so  that  we  are  as  firmly  wedded  to  it  as  an  indispensable 
factor  in  the  future  adjudication  of  prize  law  as  our  col- 
leagues of  the  British  delegation  are  to  their  court  of  last 
resort.  It  was  to  the  decisions  of  the  great  Lord  Stowell 
that  our  great  jurists  Marshall  and  Story  looked  for 
light  and  leading  on  such  questions,  and  it  is  not  too  much 
to  claim  that  together  they  settled  the  law  for  the  world." 
But  despite  this  attachment  to  the  Supreme  Court,  Mr. 
Choate  said  that  the  United  States  Congress  might  re- 
ciprocally consent  to  an  appeal  by  aliens  in  prize  cases  from 
the  courts  of  first  instance  to  the  international  court,  "in 
view  of  the  enormous  benefits  to  be  derived  by  the  whole 
world  from  the  successful  establishment  of  an  international 
prize  court,"  and  that  it  would  be  sustained  in  so  doing  by 
the  popular  judgment. 

M.  Hagerup,  of  Norway,  said  that  the  question  and  the 
answers  to  it  illustrated  the  need  of  an  international  court 
which  should  replace  all  national  prize  courts;  but  that 
since  this  is  impossible  at  present,  he  would  propose  that 
no  more  than  two  national  courts  be  resorted  to,  and  that 
the  parties  should  always  have  the  right  of  renouncing  one 
of  them.  General  Poortugael,  of  the  Netherlands,  sup- 
ported this  proposition  and  cited  the  case  of  Jarndyce 
versus  Jarndyce  in  Dickens's  "Bleak  House"  as  indicative 
of  the  delay  and  expense  involved  in  multiplied  jurisdiction. 

The  conference  decided  against  an  exclusively  interna- 
tional jurisdiction  in  prize  cases,  for  the  practical  reason 
that  national  courts  can  dispose  more  simply  and  more 


ARBITRATION  435 

rapidly  of  a  great  many  cases  which  would  never  be  taken 
to  the  international  court  at  all.  But  it  adopted  M. 
Hagerup's  suggestion  that  national  jurisdiction  should  be 
exercised  in  no  more  than  two  classes  of  courts.  Each 
country  may  decide,  by  its  own  legislation,  whether  a  case 
shall  be  appealed  from  a  court  of  first  instance  directly  to 
the  international  court,  or  be  subjected  to  the  jurisdiction 
of  one  higher  national  court.  For  this  reason,  the  inter- 
national court  is  not  called  a  "  Court  of  Appeal"  or  a  "Su- 
preme Court,"  but  merely  the  "  International  Prize  Court." 
And  to  prevent  undue  delay,  it  is  provided  that  if  the  na- 
tional courts  fail  to  render  a  definitive  decision  within  two 
years  after  the  date  of  the  capture,  the  international  court 
may  entertain  a  suit  in  original  jurisdiction. 

The  fifth  question,  Shall  the  international  jurisdiction 
have  a  permanent  character,  or  be  constituted  only  on  the 
occasion  of  each  war,  was  answered  by  the  British  plan  in 
favor  of  a  permanent  court;  and  Sir  Henry  Howard,  of 
Great  Britain,  urged  in  favor  of  such  a  court  that  it  would 
have  the  stability,  tradition,  contiguity  of  procedure  and 
continuity  of  principles,  the  judicial  prestige  and  moral 
authority  which  would  be  wanting  in  temporary  tribunals 
created  for  special  occasions.  Dr.  Kriege  admitted  the 
force  of  this  reasoning,  and  said  that  the  German  plan  had 
at  first  provided  for  a  permanent  court,  but  had  later  dis- 
carded it  because  of  the  practical  consideration  that  pub- 
lic opinion  would  not  understand  why  a  permanent  court 
should  be  established,  if  simply  called  upon  to  function  in 
the  abnormal  event  of  a  war ;  and  also  because  of  the  diffi- 
culty of  deciding  upon  the  composition  of  a  permanent  court 
which  should  necessarily  be  small,  but  in  which  forty-five 
states  would  have  a  right  to  be  represented. 


436  THE  TWO   HAGUE   CONFERENCES 

M.  Ruy  Barbosa  advocated  the  British  plan  of  a  per- 
manent court,  and  urged  in  its  support  the  argument  that 
permanence  of  function  alone  gives  to  a  court  stability, 
material  and  moral  independence,  an  inflexible  application 
of  the  law,  and  that  entire  confidence  of  the  interested 
parties  and  of  the  world  in  general  which  is  absolutely 
necessary  to  the  success  of  such  an  institution;  the  ap- 
pointment of  judges  on  the  outbreak  of  a  war  would  be 
exposed  to  disadvantageous  influences,  and  even  neutral 
judges  appointed  at  such  a  time  would  be  partial  towards 
one  or  the  other  belligerent,  especially  if  the  belligerents 
are  large  powers. 

Mr.  Choate  stated  the  strong  preference  of  the  American 
delegation  for  a  permanent  court,  "lasting  not  for  each 
war,  which  might  make  it  almost  an  annual  affair,  because 
wars  are  so  numerous,  but  a  court  which  should  last  for  all 
time,  and  should  gradually  settle  all  international  differ- 
ences in  prize  law  and  establish  an  international  jurispru- 
dence which  should  cover  all  cases  and  command  and 
satisfy  the  confidence  of  all  nations."  But  here  again  Mr. 
Choate  suggested  as  a  middle  ground  a  court  whose  juris- 
diction should  be  permanent,  but  whose  judges  should  be 
added  to  in  case  of  war  by  the  appointment  of  another 
judge  by  each  belligerent. 

This  compromise  was  adopted  and  provided  that  the 
judges  should  be  appointed  for  a  term  of  six  years,  and  be 
eligible  to  reappointment;  that  the  judges  appointed  by 
the  eight  "large  powers"  should  sit  continuously,  while 
the  judges  appointed  by  the  other  powers  should  sit  in  turn 
for  portions  of  the  term  of  six  years;  and  that  each  bel- 
ligerent should  be  represented  on  the  court  in  time  of  war 
by  its  appointee. 


ARBITRATION 


437 


The  sixth  question  had  to  do  with  the  constitution  of  the 
court,  the  number  of  judges,  their  appointment  and  quali- 
fications. 

Sir  Henry  Howard  urged  the  British  plan  of  requiring 
that  judges  should  be  chosen  from  among  those  persons 
whose  special  competence  would  seem  to  mark  them  out 
for  the  service ;  but  both  he  and  Sir  Edward  Fry  expressed 
their  willingness  that  naval  officers  should  act  as  assessors 
of  the  court  and  should  be  consulted  on  technical  matters. 
The  German  plan  proposed  that  the  court  be  composed  of 
five  members,  two  of  whom  should  be  admirals  appointed 
by  the  two  belligerents ;  and  Dr.  Kriege  argued  that  their 
knowledge  of  facts  and  their  technical  experience  would 
make  them  most  useful  members,  while  the  possession  of  a 
deliberative,  instead  of  only  a  consultative,  right  would 
render  them  more  impartial.  Professor  de  Martens,  of 
Russia,  approving  of  the  German  plan,  said  that  the  two 
admirals  could  explain  the  laws  and  regulations  of  their 
own  countries,  and  would  afford  a  visible  guarantee  that 
the  rights  of  the  belligerents  would  be  respected.  Mr. 
Choate  favored  the  British  plan,  and  said  that  "a  court  is 
a  court  and  a  jurist  is  a  jurist,"  and  the  introduction  of 
any  other  element  than  jurists  would  tend  to  detract  to  that 
extent  from  the  true  judicial  character  which  the  court 
should  possess;  on  the  other  hand,  if  the  two  admirals 
sitting  at  either  end  of  the  court  are  designed  merely  to 
represent  their  own  countries  and  "to  neutralize  or  kill 
each  other  off,  why  have  them  at  all  ?  Will  it  not  simply 
end  in  their  mutual  slaughter  without  adding  any  new- 
life,  strength,  or  vigor  to  the  court  ?  "  The  Anglo-American 
answer  to  the  question  as  to  qualification  was  adopted,  and 
the  rule  provides  that  all  the  judges  appointed  shall  be 


438      THE  TWO  HAGUE  CONFERENCES 

jurisconsults  of  recognized  competence  in  questions  of 
international  maritime  law  and  enjoying  the  highest  moral 
consideration. 

The  question  as  to  the  number  and  appointment  of  the 
judges  gave  rise  to  the  same  kind  though  not  to  the  same 
length  or  intensity  of  debate,  as  it  did  in  connection  with 
the  Court  of  Arbitral  Justice.  The  German  plan  proposed 
the  appointment  of  five  judges,  two  of  whom  were  to  be 
appointed  by  the  two  belligerents,  two  others  by  two  neu- 
tral powers  chosen  by  the  two  belligerents,  and  the  fifth  by  a 
third  neutral  selected,  by  lot,  if  necessary,  by  the  other  two 
neutrals.  Dr.  Kriege  advocated  this  plan  for  the  reason 
that  it  gave  representation  to  both  belligerents  and  neutrals, 
and  by  requiring  the  three  neutral  judges  to  be  selected 
from  the  members  of  the  Permanent  Court  of  The  Hague, 
it  would  closely  unite  the  two  international  courts. 

Sir  Henry  Howard,  opposing  this  plan,  said  that  it  re- 
quired a  temporary  court,  appointed  on  the  outbreak  of 
a  war ;  and  that  it  would  perpetuate  the  chief  defect  of  the 
existing  system,  which  gives  to  belligerents  the  exclusive 
power  of  determining  the  rights  of  neutrals ;  for  the  Ger- 
man plan  would  give  the  appointment  of  the  court  to  bel- 
ligerents, their  friends,  and  the  friend  of  their  friends, 
and  no  matter  how  great  the  hostility  between  the  belliger- 
ents, they  will  always  have  common  interests  to  defend 
against  neutrals. 

The  British  plan  provided  that  "each  of  the  signatory 
powers  whose  merchant  marine,  on  the  date  of  the  signa- 
ture of  this  convention,  is  more  than  800,000  tons,  shall 
designate  one"  judge; '  but  if  any  of  these  powers  should 

1  This  plan  would  have  made  the  court  consist  of  eight  judges,  appointed 
by  Great  Britain,  the  United  States,  Germany,  Norway,  France,  Japan, 
the  Netherlands,  and  Italy. 


ARBITRATION  439 

be  a  party  to  a  suit,  its  appointee  was  to  take  no  part  in  the 
decision  of  the  case.  Sir  Henry  Howard  urged  in  favor 
of  this  plan  that  it  provided  for  the  appointment  of  judges 
not  by  belligerents  as  belligerents,  but  by  all  states  having 
a  considerable  share  in  maritime  commerce ;  and  that  it 
insured  impartiality  by  excluding  the  judges  appointed 
by  the  powers  interested  in  the  case  before  the  court.  He 
added  that  his  delegation  was  willing  to  take  one  step 
further  and  exclude  the  appointees  of  any  powers  who 
enter  on  a  war  during  the  continuance  of  the  war.  Dr. 
Kriege,  while  admitting  the  impracticability  of  having  a 
court  of  forty-five  judges,  so  that  each  nation  could  be 
represented  on  it,  objected  to  the  British  plan  because  it 
was  liable  to  the  "reproach  of  lacking  in  equity,"  and 
permitted  the  possession  of  a  few  ships  more  or  less  to 
determine  the  right  of  appointment,  while  it  did  not  dis- 
tinguish between  those  powers  which  have  far  more  than 
800,000  tons  of  merchant  marine  and  those  which  had  no 
or  only  a  little  more. 

The  British  plan  would  have  excluded  from  the  court 
appointees  of  two  of  the  eight  "large  powers,"  Russia  and 
Austria,  and  put  the  appointees  of  Norway  and  the  Nether- 
lands in  their  places.  The  delegations  of  the  two  "large 
powers"  excluded  did  not  oppose  the  plan  in  the  sub- 
commission,  Professor  de  Martens  simply  remarking  that 
"  since  Russia  does  not  possess  the  minimum  of  merchant 
marine  necessary,  according  to  the  English  plan,  to  be 
represented  in  the  International  High  Court,  its  delegate 
will  confine  himself  to  presenting  some  purely  academic 
observations," — -on  the  qualification  of  the  judges.1 

1  M.  Merey  briefly  expressed  Austria's  approval  of  the  court  and  its  prefer- 
ence for  the  German  plan,  but  said  that  he  had  no  doubt  of  a  committee 
readily  reaching  an  agreement  on  its  details. 


440  THE   TWO   HAGUE   CONFERENCES 

M.  Ruy  Barbosa,  however,  did  not  at  all  confine  him- 
self to  such  observations,  but  expressed  himself  vigorously 
against  the  British  plan.  His  arguments  were,  in  brief,  as 
follows :  no  provision  is  made  by  the  plan  for  the  admis- 
sion to  representation  of  those  powers  whose  merchant 
marine  reaches  the  requisite  minimum  after  "the  date  of 
the  signature  of  this  convention";  the  interests  of  the 
large  powers  are  alone  considered,  or  at  least  made  su- 
preme, by  it,  and  the  weak  will  have  to  submit  to  the 
justice  of  the  strong,  whose  common  interests  may  not  in- 
cline them  to  respect  sufficiently  the  rights  of  the  weak, 
especially  since  it  is  usually  the  most  powerful  who  have 
the  least  reason  for  obeying  the  law ;  the  function  of  the 
court  is  designed  to  be  strictly  judicial,  and  for  the  fulfill- 
ment of  this  function,  the  possession  of  a  minimum  amount 
of  marine  tonnage  is  no  proper  qualification ;  an  impor- 
tant mass  of  tonnage,  possessed  by  countries,  each  with  a 
small  amount,  but  larger  in  the  aggregate  than  that  of  sev- 
eral of  the  powers  represented  on  the  court,  is  not  given 
any  share  in  the  appointment  of  the  judges;  a  world 
court  is  desired,  and  yet  the  British  plan  would  bar  out 
many  states  from  having  recourse  to  it  by  depriving  them 
of  the  confidence  which  they  would  have  in  it  if  they  were 
given  a  share  in  the  appointment  of  its  judges;  finally,  the 
plan  is  particularly  objectionable  because  it  differs  utterly 
in  principle  from  the  Permanent  Court  of  Arbitration, 
which  provides  for  general  representation. 

While  stating  these  objections  emphatically,  M.  Barbosa 
admitted  that  since  the  court  must  in  practice  be  much 
smaller  than  one  of  forty-five  members,  and  since  it  would 
have  to  do  with  disputes  concerning  merchant  marine,  it 
was  only  natural  that  a  restriction  of  its  members  should 


ARBITRATION  441 

be  based  on  the  importance  of  the  merchant  marine  pos- 
sessed by  each  of  the  powers.  He  proposed,  therefore,  that 
the  nations  whose  merchant  marine  was  inferior  to  the 
designated  tonnage  should  be  admitted  to  the  appoint- 
ment of  members  of  the  court,  according  to  some  agree- 
ment among  themselves,  or  by  some  other  method.  The 
representatives  of  Sweden  and  Persia  also  objected  mildly 
to  the  British  plan,  and  indorsed  some  such  method  as 
that  suggested  by  M.  Barbosa.  The  committee  of  exami- 
nation, appointed  at  the  end  of  this  session  of  the  sub- 
commission,  took  up  the  work  of  solving  this  problem  of 
the  appointment  of  judges,  and  its  solution,  which  was 
adopted  by  the  conference,  will  be  referred  to  a  little  later. 
The  subcommission  itself  practically  settled  two  other 
questions,  the  seventh  and  eighth  on  the  list,  in  connection 
with  the  proposed  court.  In  reply  to  the  question,  What 
principles  of  law  should  the  court  apply,  the  British  dele- 
gation replied  that  these  principles  should  include  treaties 
and,  in  default  of  these,  the  generally  accepted  principles 
of  international  law ;  when  questions  arise  on  which  there 
is  difference  of  opinion  in  regard  to  international  law,  the 
court  must  itself-  adopt  one  principle  or  the  other,  and 
thus  aid  in  the  development  of  international  law.  Baron 
von  Bieberstein  expressed  his  entire  satisfaction  with  this 
answer;  but  M.  Nelidow,  of  Russia,  inquired  why  the  Brit- 
ish plan  did  not  include  the  laws  of  the  captor  country, 
and  said  that  before  judging  the  acts  of  naval  officers, 
account  should  be  taken  of  the  laws,  regulations,  and 
instructions  of  their  country.  To  this,  Sir  Edward  Fry 
replied  that  the  greatest  evil  of  the  present  condition  of 
affairs  arises  from  the  multiplicity  of  national  laws  relat- 
ing to  prizes ;  and  M.  Nelidow  agreed  with  him  that  the 


442  THE  TWO   HAGUE   CONFERENCES 

essential  thing  is  to  find  an  international  law  which  can  be 
accepted  by  all  the  world.  The  article  adopted  embodied 
the  British  idea  and  expressly  stipulated  that  the  court  can 
not  regard  the  procedure  enacted  by  the  legislation  of 
the  captor  country  in  cases  where  it  believes  that  its  results 
are  opposed  to  justice  and  equity. 

The  final  question,  Should  the  order  and  method  of 
presenting  evidence  before  the  court  be  regulated,  was 
answered  in  the  affirmative,  and  the  method  adopted  was 
in  line  with  that  adopted  for  the  courts  of  arbitration.  M. 
Hagerup  called  attention  to  the  custom  of  many  national 
prize  courts  of  placing  the  burden  of  proof  upon  the 
owner  of  the  captured  vessel,  and  denounced  this  custom 
as  unjust  because  "he  who  disposes  of  the  property  of 
another  should  prove  his  right  to  do  so,  .  .  .  even 
though  it  be  a  state,  or  its  agent,  which  makes  the  capture." 
The  method  adopted  calls  for  the  presentation  of  docu- 
mentary and  other  proof  from  both  parties. 

When  the  committee  of  examination  took  up  the  work 
of  deciding  upon  a  plan  consistent  with  the  views  ex- 
pressed in  the  subcommission,  it  found  its  task  much  sim- 
plified by  the  presentation  of  a  plan  agreed  upon  by  the 
delegations  of  Great  Britain,  the  United  States,  Germany, 
and  France,  and  embodying  the  compromises  already  sug- 
gested. It  was  able,  consequently,  to  agree  upon  a  final 
report  after  only  three  meetings  and  comparatively  little 
difficulty. 

The  only  part  of  the  plan  which  caused  much  discussion 
or  any  opposition  was  that  concerning  the  constitution  of 
the  court.    At  the  first  meeting,  Mr.  Crowe,  of  Great  Brit- 
ain, presented  the  revised  plan  for  the  appointment  of* 
judges,  and  said  that  the  prime  element  in  this  matter 


ARBITRATION  443 

was  the  maritime  interest  of  the  different  powers.  "It  is 
proper,"  he  said,  "to  remember  that  certain  nations  will 
reap  only  profit  from  the  court,  whereas  others,  endowed 
with  larger  navies,  will  have  to  fulfill  certain  obligations 
and  duties  as  well.  We  believe  that  it  was  just  to  accord 
to  the  nations  which  possess  a  considerable  marine  —  and 
whose  officers  in  consequence  will  have  often  to  justify 
their  conduct  before  the  court  —  a  direct  and  permanent 
representation."  Sir  Edward  Fry  had  already  stated  that 
the  plan  provided  for  fifteen  judges,  eight  of  whom  were 
to  be  appointed  by  "eight  of  the  large  powers,"  which 
possess  not  only  the  largest  naval  forces  but  also  a  very 
considerable  merchant  marine;  "and  they  are  the  only 
ones,"  he  added,  "which  will  in  all  probability  be  defend- 
ants before  this  new  prize  court."  These  were  the  only 
arguments  advanced  in  support  of  this  part  of  the  plan ; 
but  they  were  accepted  without  opposition  in  the  com- 
mittee. Mr.  Crowe  proceeded  to  explain  that  the  sug- 
gestion to  have  the  other  seven  judges  elected  by  groups 
of  the  other  states  had  been  discarded,  for  the  reason  that 
any  such  classification  would  have  been  unable  to  secure 
the  unanimous  indorsement  of  the  conference ;  the  plan 
proposed,  therefore,  gave  to  each  of  the  other  states  the 
appointment  of  a  judge,  who  should  be  appointed  for  a 
term  of  six  years,  but  should  sit  in  the  tribunal  for  a  shorter 
period,  depending  upon  the  importance  of  his  country's 
merchant  marine.  He  presented  a  table  of  the  "other 
powers,"  to  whose  judges  were  assigned  seats  for  periods 
ranging  from  one  to  four  years.  On  the  motion  of  M. 
Hammarskjold,  the  committee  adopted  without  discus- 
sion the  amendment  that  the  "other  powers"  should  be 
represented  on  the  court  during  the  continuance  of  any 


444  THE  TWO   HAGUE   CONFERENCES 

war  in  which  they  might  be  engaged,  the  retirement  of 
the  judges  whose  places  would  thus  be  filled  to  be  deter- 
mined by  lot ;  and  this  amendment  afterwards  secured  the 
acceptance  of  the  court  by  several  powers. 

The  opponents  of  this  plan  of  appointment  were  not 
ready  to  discuss  it  on  its  first  presentation,  but  in  the  two 
succeeding  meetings  of  the  committee  M.  Barbosa  ex- 
pressed his  opposition  to  it.  He  stated  that  the  court  of 
arbitration  and  the  prize  court  differed  in  that  the  latter 
had  to  do  only  with  states  which  had  maritime  interests,  and 
admitted  the  justice  of  the  principle  on  which  the  appoint- 
ment of  its  judges  was  based.  But  the  application  of  the 
principle  in  the  proposed  plan  he  objected  to  for  the  rea- 
son that  Brazil  was  ranked  in  the  fourth  class  of  "other 
powers,"  whose  judges  would  sit  for  only  twoof  thesixyears ; 
whereas,  according  to  the  best  statistics  he  could  find,  its 
merchant  marine  should  place  it  above  Belgium,  Portu- 
gal, and  Roumania,  which  were  ranked  in  the  third  class, 
and  far  above  Switzerland  and  Servia,  which  do  not  possess 
a  single  ship  and  yet  are  ranked,  the  one  above,  the  other 
together  with,  Brazil.  M.  Esteva,  of  Mexico,  indorsed  M. 
Barbosa's  objection,  which  was  applicable  to  the  rank 
assigned  Mexico  as  well ;  but  Count  Mortera,  of  Spain,  al- 
though his  country  possessed  more  merchant  marine  than 
Austria,  one  of  the  favored  eight  "large  powers,"  said  that 
his  delegation  would  accept  the  second  rank  assigned  it,1 
provided  that  a  periodical  revision  should  be  made.  And 
M.  Hagerup  said  that,  although  his  country's  merchant 
marine  ranked  fourth  among  all  the  powers  of  the  world, 
it  would  accept  the  eleventh  place  assigned  it,  in  the  third 
class  of  smaller  powers.     "It  makes  this  sacrifice,"  he 

1  That  is,  the  first  class  among  the  "smaller  powers." 


ARBITRATION  445 

said,  "with  the  object  of  aiding  the  accomplishment  of  a 
useful  task  which  will  have  great  results  in  the  develop- 
ment of  international  law."  M.  Hagerup's  short  speech 
was  warmly  applauded,  and  under  its  influence  the  oppos- 
ing minority  was  appealed  to  by  Professor  Lammasch,  of 
Austria,  and  Mr.  Crowe,  the  former  of  whom  urged  that 
not  only  merchant  marine  but  naval  force  as  well  —  not 
only  captives  but  captors  also  —  had  been  considered  in 
the  plan ;  while  Mr.  Crowe  argued  that  if  one  judge  for  the 
entire  period  were  assigned  to  Norway,  for  example,  and 
Great  Britain,  the  United  States,  and  Germany  were  as- 
signed judges  solely  in  proportion  to  their  merchant 
marine,  the  desired  number  of  fifteen  judges  would  be  far 
surpassed  ;  hence  certain  countries  must  be  resigned  to 
figure  in  the  same  group  with  powers  that  have  much  less 
tonnage.  But  the  minority  did  not  yield  their  objections, 
and  to  the  next  meeting  of  the  committee  M.  Esteva  sent  a 
letter  stating  that  his  country  had  instructed  him  to  reject 
every  plan  in  which  "all  the  states  summoned  to  the  con- 
ference, large  or  small,  strong  or  weak,  are  not  regarded 
under  the  most  absolute  and  perfect  equality";  and  M. 
Barbosa  made  another  speech  pointing  out  the  mathemati- 
cal inequalities  of  the  ranking  of  the  states,  especially  of 
Brazil,  Mexico,  Argentina,  and  Chili,  both  as  regards  their 
merchant  marine  and  their  naval  forces.  No  reply  was 
made  to  this  speech,  and  the  committee  adopted  the  plan 
by  a  vote  of  ten  delegations  to  one. 

When  the  committee's  report  was  presented  to  the 
I  Commission,  M.  Barbosa  immediately  took  the  floor 
to  state  that  the  Brazilian  delegation  had  been  one  of  the 
most  consistent  and  foremost  advocates  of  the  establish- 
ment of  an  international  prize  court,  its  exclusive  jurisdic- 


446  THE  TWO   HAGUE   CONFERENCES 

tion  over  prizes,  its  permanence,  and  the  apportionment  of 
its  judges  among  the  powers  according  to  their  maritime 
interests;  but  that  precisely  because  of  this  fact  it  had 
opposed  the  plan  of  appointing  judges  which  was  alleged 
to  be  based  on  the  three  elements  of  the  tonnage  of  mer- 
chant marine,  the  value  of  maritime  commerce,  and  the 
strength  of  naval  forces.  This  plan,  he  charged,  was  un- 
just, on  this  basis,  to  American  states,  and  especially  to 
Brazil ;  and  his  delegation  would  vote  against  the  project. 
On  the  other  hand,  the  delegations  of  Mexico  and  Ar- 
gentina, on  whose  behalf  M.  Barbosa  had  made  an  appeal 
against  the  plan  of  appointment,  both  announced,  the  first 
that  it  would  not  oppose,  and  the  second  that  it  would 
vote  for,  the  report  as  presented  by  the  committee.  M. 
Esteva  said  that  his  withdrawal  from  opposition  was  au- 
thorized by  his  country  under  the  influence  of  its  desire 
to  cooperate  in  an  effort  for  peace.  M.  Larreta,  of  Argen- 
tina, in  a  much  applauded  speech,  said  that  his  country's 
adherence  to  the  plan  was  due  to  its  belief  that  the  court 
established  by  it  would  render  impartial  decisions,  instead 
of  the  more  or  less  partial  ones  rendered  at  present  by 
belligerent  courts,  and  that  it  would  be  the  first  inter- 
national jurisdiction  created  by  the  civilized  world,  and 
would  become  immediately,  not  only  a  desirable  step  for- 
ward, but  an  indispensable  institution. 

"We  accept  the  place  accorded  to  the  Argentine  Republic  in  the 
distribution  of  judges,"  he  said,  "not  only  because  we  believe  in  the 
good  faith  which  has  determined  it,  and  which,  in  fact,  approximates 
the  truth,  but  also  because  we  have  regarded  the  project  less  as  a 
problem  in  arithmetic  than  as  an  institution  of  trust  and  harmony. 
It  may  be  that  the  Argentine  Republic  should  have  had  a  higher  rank- 
ing. We  are  to-day  the  leading  exporters  of  cereals  in  the  world.  .  .  . 
But  this  little  sacrifice  we  make  freely,  in  homage  to  this  great  work 
of  law  and  justice." 


ARBITRATION 


447 


Of  the  other  Latin-American  delegations,  the  Venezuelan 
announced  that  it  would  abstain  from  voting  on  the  plan 
because,  although  designed  to  establish  a  much-to-be- 
desired  institution,  it  flatly  contradicted  the  principle  of 
the  equality  of  sovereign  states ;  and  the  delegation  from 
Chili  announced  that  it  too  would  abstain  from  the  vote 
while  awaiting  new  instructions. 

The  delegations  of  Roumania,  Norway,  Greece,  Belgium, 
and  Servia,  in  announcing  their  acceptance  of  the  plan, 
stated  that  it  was  acceptable  to  them  in  spite  of  its  unequal 
distribution  of  the  judges,  because  there  was  an  essential 
difference  between  a  court  of  arbitral  justice,  in  which 
there  should  be  absolute  equality  of  representation,  and  a 
prize  court,  which  would  be  called  upon  to  adjudicate  only 
one  special  kind  of  international  differences. 

After  this  general  discussion  of  the  plan,  the  commis- 
sion slightly  amended  the  articles  submitted  to  it  and 
adopted  them  by  a  vote  of  twenty-seven  to  two  (Brazil 
and  Turkey),  with  fifteen  abstentions.1 

When  the  articles  were  reported  to  the  conference  in 
plenary  session  the  negative  vote  was  reduced  to  one  (Bra- 
zil; Turkey  this  time  abstained),  the  abstentions  were 
reduced  to  five,  and  the  favorable  vote  was  increased  to 
thirty-eight,  although  ten  of  the  countries  casting  a  favora- 
ble vote  conditioned  it  on  the  reserve  of  the  article  relating 
to  the  appointment  of  judges.  In  view  of  the  one  nega- 
tive vote  against  the  articles  establishing  the  prize  court, 
they  could  not,  according  to  the  precedent  set  by  the  first 
conference,  have  taken  their  place  as  an  adopted  conven- 
tion in  the  Final  Act  of  the  conference ;  but  the  committee 

1  Ten  of  the  delegations  abstaining  were  Latin  American;  the  other  five 
were:    Denmark,  Russia,  Montenegro,  Persia,  and  Japan. 


448  THE  TWO   HAGUE   CONFERENCES 

having  charge  of  the  Final  Act  received  the  assurance  of 
M.  Barbosa  that  Brazil  would  not  oppose  this  action. 
Hence  the  "Convention  relative  to  the  Establishment  of 
an  International  Prize  Court,"  with  its  fifty-seven  articles, 
figures  as  one  of  the  thirteen  conventions  adopted  by  the 
conference. 


XIV.    A   SUMMARY   OF   RESULTS   AND 
THEIR    HISTORICAL    IMPORTANCE 

A.    ATTEMPTS 

The  direct  results  of  the  labors  of  the  two  conferences 
were  expressed  in  the  form  of  conventions,  declarations, 
and  desires  (voeux).  Under  the  last  named  are  to  be 
found  what  may  be  called  the  "attempts,"  as  distinguished 
from  the  "achievements,"  of  the  conferences.  It  would 
not  be  fair  to  call  these  "failures,"  as  distinguished  from 
"successes";  for,  aside  from  their  indirect  result  of 
recognizing  and  sustaining  public  sentiment,  they  may 
have  the  direct  result  in  the  near  future  of  inciting  the 
governments  to  enter  upon  a  serious  study  of  certain 
pressing  problems  and  thus  to  inaugurate  a  campaign 
of  education  which  will  result  in  the  molding  of  national 
public  opinion  concerning  those  problems  and  the  attain- 
ment of  an  international  solution  of  them. 

This  solution  may  be  confidently  hoped  for  in  succeed- 
ing conferences;  for  it  will  be  noted  that  even  within  the 
short  period  of  eight  years  some  of  the  "attempts"  of 
the  first  conference  became  the  "achievements"  of  the 
second. 

a.  The  Conference  of  1899 

I.     ARMAMENTS 

The  action  of  the  first  conference  on  the  question  of 
armaments  was  the  unanimous  expression  of  a  belief  and 

449 


450  THE  TWO   HAGUE   CONFERENCES 

a  desire;  the  belief,  namely,  that  "a  limitation  of  the 
military  expenses  which  now  burden  the  world  is  greatly 
to  be  desired  in  the  interests  of  the  material  and  moral 
well-being  of  mankind"  ;  and  the  desire  that  "the  govern- 
ments, having  regard  to  the  propositions  advanced  in  the 
conference,  shall  take  up  the  study  of  the  possibility  of 
an  agreement  concerning  the  limitation  of  armed  forces 
on  land  and  sea,  and  of  military  budgets." 

This  action  was  in  no  sense  a  limitation  of  armaments, 
and,  indeed,  the  increase  of  armaments  continued  at  re- 
doubled speed  after  the  adjournment  of  the  conference. 
But  the  attention  of  the  nations  was  forcibly  directed  to 
the  question;  a  standard  was  erected,  an  ideal  held  up, 
to  serve  as  the  goal  of  future  efforts ;  Argentina  and  Chili 
reached  that  goal  three  years  after  the  conference  ad- 
journed; and  some  of  the  governments  took  up  a  study 
of  at  least  one  phase  of  the  question  and  entered  upon 
a  direct  communication  with  each  other  as  to  the  results 
of  their  study  one  year  before  the  second  conference 
"assembled.1 

This  study  was  considered  by  the  second  conference  as 
wholly  inadequate,  and  as  having  induced  some  of  the 
larger  powers  to  decline  to  enter  upon  a  further  inter- 
national discussion  of  the  subject.  But  the  appeal  of  the 
Conference  of  1899  for  a  thorough  study  of  the  question 
was  still  considered  as  the  sine  qua  non  of  its  solution, 
and  was  accordingly  repeated  by  the  Conference  of  1907. 

1  See  United  States  Senate  Document,  No.  444,  60th  Congress,  1st  Session, 
page  9. 


A  SUMMARY   OF   RESULTS  451 

II.     WARFARE    ON    THE    SEA 

I.    Marine  Cannon 

The  conference  voted  to  refer  the  question  of  prohibit- 
ing the  introduction  of  new  types  of  marine  cannon,  and 
of  those  with  larger  caliber,  to  study  by  the  governments. 
But  there  seems  to  have  been  but  little  hope  in  the  con- 
ference that  the  governments  would  act  upon  this  vote, 
and  there  is  no  evidence  that  they  have  done  so. 

2.    Torpedo  Boats  and  Rams 

The  proposition  to  prohibit  the  use  of  submarine  torpedo 
boats,  or  plungers,  met  with  so  much  opposition  that  it 
was  abandoned. 

The  propositions  to  prohibit  the  construction  of  war 
ships  with  rams,  and  to  mask  the  rams  on  war  ships  in 
time  of  peace,  were  also  abandoned,  and  without  formal 
action. 

3.    The  Private  Property  of  Belligerents 

The  United  States  proposition  that  the  private  property 
of  belligerents  should  be  exempt  from  capture  in  maritime 
warfare  was  referred,  by  unanimous  vote,  to  a  later  con- 
ference for  discussion.  But  the  importance  of  the  question 
and  the  reasonableness  of  the  American  proposition  were 
presented  to  the  conference,  and  through  it  to  the  nations, 
in  an  impressive  address '  by  Ambassador  White ;  and 
the  delegation  from  Italy  stated  its  country's  adhesion 
to  the  proposition  both  in  principle,  as  an  international 


452  THE   TWO   HAGUE   CONFERENCES 

rule,  and  in  practice,  as  applied  in  the  treaty  between 
Italy  and   the  United   States. 

The  fact  that  this  American  proposition  was  pushed  to 
no  further  conclusion  should  be  viewed  in  the  light  of 
what  was  accomplished  by  the  conference  in  the  direction 
of  arbitration.  Ambassador  White  wrote  in  his  diary 
at  the  time  of  his  efforts  in  behalf  of  the  exemption  of 
private  property  on  the  sea:  "What  we  are  sent  here  for 
is,  above  all,  to  devise  some  scheme  of  arbitration;  and 
anything  which  comes  in  the  way  of  this,  by  provoking 
ill  feeling  or  prolonging  discussion  on  other  points,  will 
diminish  our  chances  of  obtaining  what  the  whole  world 
so  earnestly  desires." 

4.    Neutral  Rights  and  Duties 

The  comparatively  unimportant  right,  or  "faculty,"  of 
neutral  states  to  send  their  naval  attaches  to  the  theater 
of  maritime  warfare,  was  the  only  neutral  right  or  duty 
on  the  seas  discussed  by  the  Conference  of  1899;  and  the 
conference  declined  to  sanction  even  this  right.  But  the 
raising  of  the  question  of  neutral  rights  and  duties  in 
warfare  on  the  land  led  to  the  adoption  of  a  desire  that 
the  entire  question  should  be  referred  to  a  later  conference. 
This  desire  was  heeded  in  1907,  and  an  important  code 
of  rules  concerning  the  rights  and  duties  of  neutrals  on 
both  land  and  sea  was  adopted  by  the  second  conference. 

5.   Laws  and  Customs  of  Naval  Warfare 

An  attempt  was  made  to  have  one  custom  of  naval 
warfare,   that  of  bombarding  unfortified  seaports,  regu- 


A   SUMMARY    OF    RESULTS  453 

lated  by  international  agreement.  But  the  conference 
consented  only  to  have  this  question  referred  to  a  later 
conference.  This  reference  met  with  entire  success  in 
1907,  however;  and  the  work  of  the  first  conference  in 
codifying  the  laws  of  warfare  on  land  inspired  the  second 
conference  to  regulate  various  other  customs  of  maritime 
warfare  than  that  of  bombardment. 


III.    WARFARE   ON   LAND 

I.   New  Arms  and  Methods 

The  various  attempts  to  prohibit  the  introduction  or 
use  of  new  and  more  powerful  kinds  of  explosives,  cannon, 
and  muskets  came  to  naught  in  the  conference,  and  have 
been  commonly  regarded  as  absolute  failures.  It  may 
be  noted,  however,  that  these  attempts  were  based  on 
the  Declaration  of  St.  Petersburg  of  1868,  which  was 
ratified  by  seventeen  European  powers;  and  that  the 
spirit  of  this  declaration  was  successfully  appealed  to  in 
the  case  of  a  new  kind  of  bullets  the  use  of  which  was 
prohibited  by  the  first  conference. 

2.   Neutral  Rights  and  Duties 

Nothing  was  accomplished  by  the  first  conference  in 
the  definition  and  sanction  of  the  rights  and  duties  of 
neutrals  in  warfare  on  the  land.  But  the  importance 
of  the  question  was  so  impressively  stated  that  the  confer- 
ence voted  unanimously  to  refer  it  to  the  next  conference ; 
and  the  second  conference  made  extraordinary  progress 
in  the  solution  of  it. 


454  THE   TW0   HAGUE   CONFERENCES 

IV.     ARBITRATION 

I.    Obligatory  Arbitration 

Universal  obligatory  arbitration,  that  is,  obligatory 
arbitration  for  all  classes  and  cases  of  dispute,  was  con- 
sidered by  the  conference  entirely  impossible  under  the 
existing  circumstances,  and  no  delegation  even  proposed 
it. 

On  the  other  hand,  the  importance  of  obligatory  arbi- 
tration for  certain  classes  of  cases  as  a  means  of  asserting 
the  principles  of  law  in  international  relations  and  of 
eliminating  many  troublesome  misunderstandings  between 
states,  was  emphatically  asserted  and  freely  admitted. 
The  attempt  was  accordingly  made  to  secure  a  convention 
providing  for  obligatory  arbitration  in  eleven  classes  of 
cases,  in  so  far  as  these  cases  should  not  affect  the  vital 
interests  or  the  honor  of  the  parties  to  the  dispute.  In 
the  face  of  strong  opposition,  and  in  order  to  insure 
unanimous  support  for  the  Permanent  Court  of  (voluntary) 
Arbitration,  this  attempt  was  abandoned  before  the  propo- 
sition was  brought  to  a  formal  vote. 

The  conference  did  formally  indorse  (by  Article  19 
of  the  Convention  for  the  Peaceful  Adjustment  of  Inter- 
national Differences)  the  introduction  of  obligatory  arbi- 
tration for  certain  classes  of  cases  in  separate  treaties 
contracted  by  the  individual  states ;  and  the  large  number 
and  the  success  of  such  treaties  which  had  recently  been 
contracted  were  made  very  prominent  in  the  conference's 
discussions. 

The  famous  Article  27  (of  the  above-named  con- 
vention), which  made  it  the  duty  of  the  signatory  powers 


A   SUMMARY   OF   RESULTS  455 

to  remind  the  parties  to  a  dispute  that  the  Permanent 
Court  of  Arbitration  is  open  to  them,  was  also  advocated 
and  welcomed  as  a  step  in  the  direction  of  obligatory 
arbitration;  while  the  exponent  of  Germany's  powerful 
opposition  to  a  general  treaty  of  obligatory  arbitration 
said  that  when  the  Permanent  Court  should  be  put  in 
operation,  the  opportune  moment  might  come  when, 
after  experiments  between  separate  nations,  a  list  of 
cases  could  be  agreed  upon  obligatory  for  all. 

The  impulse  of  the  first  conference  towards  obligatory 
arbitration  is  shown  by  the  fact  that  after  the  adjourn- 
ment of  the  conference  the  German  government  devoted 
itself  to  a  profound  study  of  obligatory  arbitration,  and 
adopted  several  treaties  providing  for  it,  and  at  the  second 
conference  announced  its  entire  conversion  to  a  belief 
in  its  efficacy  and  desirability  in  so  far  as  treaties  between 
separate  nations  are  concerned. 

This  impulse  is  shown  by  the  additional  fact  that 
various  other  countries,  great  and  small,  "have  made 
haste,"  to  quote  Mr.  Choate's  speech  in  the  Conference 
of  1907,  "to  interchange  with  other  individual  nations 
agreements  to  settle  the  very  questions  for  which  arbitra- 
tion was  recognized  by  the  last  conference  as  the  most 
efficacious  and  equitable  remedy,  by  that  peaceful  method 
instead  of  by  a  resort  to  war.  I  believe  that  some  thirty 
treaties  have  been  thus  exchanged  among  the  nations  of 
Europe  alone,  all  substantially  to  the  same  purport  and 
effect." 

And  Baron  von  Bieberstein,  of  Germany,  said  in  the 
second  conference:  "In  the  course  of  our  debates  the 
fortunate  fact  has  been  mentioned  that  a  long  series  of 
other   treaties  of   obligatory  arbitration  have   been  con- 


456  THE   TWO    HAGUE   CONFERENCES 

eluded  between  various  states.  This  is  genuine  progress, 
and  the  credit  of  it  is  due,  incontestably,  to  the  first  Peace 
Conference." 


2.    The  Forcible  Collection  of  Debts 

The  only  class  of  debts,  for  whose  collection  obligatory 
arbitration  was  proposed  in  .the  first  conference,  was  that 
class  which  arises  from  pecuniary  damages  suffered  by 
one  state  or  its  citizens  as  the  result  of  the  illegal  action 
or  negligence  of  another  state  or  its  citizens. 

It  was  recognized  that  since  disputes  having  to  do 
with  such  damages  have  formed  the  large  majority  of 
the  cases  submitted  to  arbitration  they  are  especially 
suitable  for  submission  to  obligatory  arbitration.  Such 
disposition  was  provided  for  them  by  unanimous  vote 
of  a  committee  of  the  first  conference,  and  by  a  vote  of 
thirty-one  to  eight  in  a  commission  of  the  second  con- 
ference. But  in  both  cases  this  agreement  failed  when 
the  other  parts  of  the  obligatory  arbitration  programme 
wrere  discarded.1 

b.    The  Conference  of  1907 

I.     ARMAMENTS 

The  Russian  government  omitted  the  subject  of  the 
limitation  of  armaments  from  the  programme  of  the 
second  conference,  and  several  other  powers  made 
a    determined    effort    to    prevent    its    being    introduced 

1  The  arbitration  of  contract  debts  was  regarded,  in  the  second  conference, 
as  different  from,  or  a  different  kind  of,  obligatory  arbitration,  and  was  made 
the  subject  of  an  international  agreement. 


A   SUMMARY   OF    RESULTS 


457 


for  discussion.  But  the  conference  as  a  whole  deter- 
mined to  regard  it,  as  Secretary  Root  instructed  the 
United  States  delegation  to  regard  it,  as  "unfinished 
business." 

Accordingly,  the  importance  of  restricting  the  increase 
of  armaments  was  again  impressed  upon  the  representatives 
of  the  nations;  again  the  delegations  of  several  great 
powers  expressed  the  sympathy  of  their  people  with  the 
general  proposition;  and  again  the  governments  were 
urged  to  enter  upon  a  thorough  study  of  the  ways  and 
means  of  finding  a  practical  plan  of  limitation,  and  of 
securing  international  agreement  to  adopt  it  ;  while 
for  the  first  time  in  the  presence  of  the  representatives 
of  all  the  nations,  an  inductive  argument  for  limitation 
was  made  on  the  basis  of  a  five  years  concrete  experi- 
ment on  the  part  of  two  important  republics  of  the  New 
World    (Argentina   and   Chili). 

In  furtherance  of  the  desire  expressed  by  the  con- 
ference that  the  question  of  armaments  shall  be  subjected 
to  a  thorough  study,  the  International  Peace  Congress, 
at  its  session  of  1907  in  Munich,  requested  the  Inter- 
national Peace  Bureau  at  Berne  to  secure  the  appoint- 
ment of  committees  to  initiate  that  study.  The  Bureau, 
through  its  representatives  in  the  various  nations,  has 
already  created  a  number  of  representative  committees 
in  the  principal  countries  of  both  hemispheres  with  the 
duty  of  studying  thoroughly  and  impartially  the  whole 
armament  question,  of  laying  the  results  of  their  study 
before  the  governments  and  the  public,  and  of  procuring 
as  soon  as  possible  the  meeting  of  an  international  con- 
ference charged  with  the  sole  duty  of  solving  this  knotty 
problem. 


458  THE   TWO   HAGUE   CONFERENCES 

II.     WARFARE    ON    THE    SEA 

i .    The  Private  Property  of  Belligerents 

The  "American  idea"  of  exempting  the  private  property 
of  belligerents  from  capture  in  time  of  naval  war,  was 
again  presented  to  the  nations  by  America's  first  delegate 
in  a  profoundly  impressive  address.  After  a  discussion 
of  it  which  lasted  three  weeks  and  which  showed  the 
strength  of  the  arguments  advanced  in  its  favor  and  the 
weakness  of  those  opposed  to  it,  twenty-one  of  the  forty- 
four  nations  represented  cast  their  votes  for  its  adoption 
and  only  eleven  voted  against  it.  The  eight  "large 
powers"  were  evenly  divided  on  the  question,  and  this 
fact,  rather  than  the  negative  vote,  abstention,  or  absence 
of  nineteen  of  the  "small  powers,"  was  the  chief  reason 
why  the  American  delegation  decided  not  to  press  the 
matter  in  a  plenary  session  of  the  conference,  but  to  leave 
it  where  the  commission  had  brought  it. 

"There  it  was  left,"  says  Mr.  Choate,1  "either  for  these  twenty- 
two2  nations  to  agree,  as  they  may  agree,  to  a  treaty  between  them- 
selves, for  the  practical  establishment  of  the  doctrine  between  them 
in  case  they  engage  in  war,  or  for  action  by  a  further  conference  to 
be  held  in  the  course  of  seven  or  eight  years.  So  there,  as  it  seems 
to  me,  was  very  great  progress  made.  We  do  not  stand  any  more 
where  we  did  at  the  beginning  of  the  conference,  nobody  assenting 
to  it  but  ourselves,  but  twenty-two  nations  of  greater  or  less  im- 
portance pledged  to  the  proposition  which  makes  so  strongly  for 
peace." 

1  In  an  address  before  the  New  York  State  Bar  Association,  January  24, 
1908. 

2  Mr.  Choate  states  the  number  of  affirmative  votes  to  be  twenty-two, 
and  it  may  be  that  Chili,  who  abstained  from  the  first  vote,  or  one  of  the  eleven 
absentees,  later  asked  to  be  recorded  in  favor  of  the  proposition ;  but  the 
official  record  gives  the  number,  and  list,  of  the  affirmative  votes  as  twenty- 
one.     See  note,  page  138. 


A   SUMMARY   OF   RESULTS  459 

It  may  be  noted,  also,  that  the  favorable  attitude  of 
a  large  section  of  the  conference  towards  the  exemption 
of  merchant  ships  and  cargoes  from  capture  made  easier 
the  path  to  success  of  the  propositions  to  accord  merchant 
ships  in  hostile  ports  a  delay  of  favor  before  capture,  to 
treat  the  crews  of  captured  merchant  ships  with  especial 
leniency,  and  to  exempt  from  capture  mail  and  ships 
engaged  in  fishing  or  in  scientific,  charitable,  or  religious 
missions. 

2.    Blockade 

An  attempt  was  made  by  several  states  of  Continental 
Europe  to  restrict  "effective  blockades"  to  those  which 
are  maintained  by  naval  forces  stationed  in  such  a  way 
as  to  create  an  evident  danger  to  ships  which  desire  to 
attempt  a  passage,  and  to  restrict  the  capture  of  such 
ships  to  the  moment  when  they  are  attempting  to  break 
the  established  lines.  But  the  British  contention  that 
cruisers  and  submarine  mines  are  proper  means  of  en- 
forcing a  blockade,  and  the  American  insistence  that 
a  ship  which  sets  sails  for  a  blockaded  port,  after  the 
blockade  has  been  duly  announced,  may  be  seized  beyond 
the  established  lines,  prevented  the  attempt  at  restriction 
from  being  successful. 

The  conference  made  no  direct  reference  of  the  subject 
of  blockade  to  the  consideration  of  the  next  conference; 
but  it  was  doubtless  meant  to  be  included  in  its  reference 
to  that  body  of  the  laws  and  customs  of  maritime  warfare. 

3.   Contraband  of  War 

The  British  proposition  to  abolish  the  principle  of 
contraband  of  war,  the  Brazilian  proposition  to  abolish 


460  THE   TWO    HAGUE   CONFERENCES 

the  distinction  between  absolute  and  conditional  contra- 
band, and  the  German,  French,  and  American  propo- 
sitions to  define  more  clearly  the  meaning  and  liability 
of  absolute  and  conditional  contraband,  all  failed  of 
adoption. 

But  the  British  proposition,  at  first  marvelled  at  be- 
cause of  its  radical  character,  received  a  vote  of  twenty- 
six  for,  five  against,  and  four  abstentions.  Four  of  the 
five  negative  votes  were  cast  by  "great  powers,"  while 
Japan,  another  of  the  eight  great  powers,  abstained. 
Three  of  the  eight  great  powers  voted  for  the  proposition, 
and  twenty-three  of  the  other  nations  united  with  them 
in  support  of  this  radical  measure;  hence  it  is  probable 
that  when  the  subject  comes  up  in  the  next  conference, 
at  least  a  strict  definition  of  absolute  and  conditional 
contraband  will  be  agreed  upon. 

4.    The  Destruction  of  Neutral  Prizes 

The  proposition  to  secure  a  prohibition  of  the  de- 
struction of  neutral  prizes,  and  to  require  every  neutral 
prize  either  to  be  taken  before  a  prize  court  or  released, 
failed  of  adoption,  and  was  referred  to  the  decision  of 
the  next  conference.  An  amendment  to  this  proposition, 
namely,  that  neutral  powers  be  permitted  to  receive  within 
their  harbors  both  belligerent  and  neutral  prizes,  was 
adopted;  and  this  permission  will  probably  result  in 
saving  many  neutral  prizes  from  destruction. 

5.    The  Laws  and  Customs  of  Naval  Warfare 

The  attempt  to  apply  to  naval  warfare  the  remarkable 
code  of  laws  and  customs  adopted  by  the  Conference 


A   SUMMARY   OF   RESULTS  461 

of  1899  for  the  regulation  of  warfare  upon  land  did  not 
result  in  the  adoption  of  a  code  of  maritime  law.  But 
it  did  result  in  a  valuable  report  upon  the  applicability 
of  the  code  of  1899  to  naval  warfare,  and  in  the  twofold 
desire,  passed  unanimously  by  the  conference,  that  the 
question  be  referred  to  the  next  conference  and  that 
meanwhile  the  powers  shall  apply  the  code  of  1899  to 
naval  warfare  as  far  as  possible. 


III.     ARBITRATION 

1.   International  Commissions  of  Inquiry 

The  attempts,  first,  to  make  it  the  duty  of  the  powers 
to  call  the  attention  of  nations  in  dispute  to  the  desirability 
of  appointing  commissions  to  inquire  into  the  dispute; 
and,  second,  to  induce  the  powers  to  agree  to  establish 
international  commissions  of  inquiry,  instead  of  merely 
declaring  that  they  judged  their  establishment  to  be 
useful,  failed  of  achievement.  On  the  other  hand,  the 
powers  agreed  that  the  establishment  of  such  commissions 
is  both  useful  and  desirable,  and  they  adopted  an  im- 
proved code  of  procedure  for  such  commissions  when 
established. 

2.    Obligatory  Arbitration 

The  attempt  to  apply  the  principle  of  obligatory  ar- 
bitration in  a  general  treaty  between  all  the  nations  did 
not  succeed.  It  gave  rise  to  a  prolonged  and  extraor- 
dinary debate,  in  the  course  of  which  it  became  evident 
that  the  Dominican  proposition  to  establish  unrestricted 


462  THE  TWO   HAGUE   CONFERENCES 

obligatory  arbitration  was  premature,  but  that  the  nations 
were  unanimous  in  expressing  an  ardent  desire  for  re- 
stricted obligatory  arbitration  in  some  form,  either  in  the 
form  of  a  general  treaty  between  all  the  nations,  or  in 
that  of  separate  treaties  between  pairs  of  nations,  and 
either  in  the  form  of  a  treaty  specifying  a  list  of  definite 
classes  of  disputes,  or  in  that  of  a  treaty  providing  for  the 
arbitration  of  all  disputes  with  certain  specified  exceptions. 

The  American  proposition  of  obligatory  arbitration 
for  judicial  disputes  and  those  relating  to  the  interpreta- 
tion and  application  of  treaties,  with  the  exception  of 
those  involving  vital  interests,  independence,  and  honor, 
and  the  interests  of  third  parties,  secured  an  affirmative 
vote  of  thirty-five  to  nine.  The  Portuguese  proposition 
of  obligatory  arbitration  for  some  list  of  cases  secured  an 
affirmative  vote  of  thirty-three  to  eleven;  and  obligatory 
arbitration  for  the  proposed  list  of  cases  secured  an  affirm- 
ative vote  of  thirty-one  to  thirteen. 

In  view  of  the  lack  of  unanimity  revealed  by  the  debate 
and  the  above-mentioned  votes,  the  conference  did  not 
adopt  any  definite  measure  providing  for  obligatory 
arbitration  in  any  form.  But  it  did  adopt  by  a  vote  of 
forty-one  ayes  and  three  abstentions,1  a  recognition  of 
obligatory  arbitration  in  principle;  a  declaration  that 
certain  differences,  and  especially  those  relating  to  the 
interpretation  and  application  of  international  treaties, 
are  capable  of  being  submitted  to  obligatory  arbitration 
without  any  restriction  whatever;  and  an  assertion  that 
the  diversities  of  opinion  revealed  in  the  long  debate 
did  not  exceed  the  bounds  of  a  juristic  controversy. 

1  One  of  the  three  delegations  which  abstained  was  that  of  the  United 
States,  the  prime  advocate  of  the  proposition  for  obligatory  arbitration.  See 
page  348. 


A   SUMMARY   OF   RESULTS  463 

It  is  also  noteworthy  that  the  German  and  Austrian 
delegations,  which  led  the  opposition  to  the  proposed  plans 
for  obligatory  arbitration,  did  so  for  the  expressed  reason 
that  these  plans,  if  adopted,  would  injure  the  progress  of 
obligatory  arbitration,  and  that  they  were  among  the 
foremost  and  most  emphatic  advocates  of  obligatory 
arbitration,  in  the  form  of  separate  treaties  between  pairs 
of  nations,  as  a  means  of  settling  international  disputes. 

The  United  States  delegation,  in  its  report  to  the  govern- 
ment, comments  on  this  attempt  and  its  result  as  follows : 

"It  may  be  admitted  that  the  establishment  of  the 
principle  of  obligatory  arbitration  is  an  advance.  It 
is  not,  however,  the  great  advance  so  earnestly  desired; 
for  a  concrete  treaty  embodying  the  principle  of  obliga- 
tory arbitration  would  have  been  infinitely  more  valuable 
than  the  declaration  of  obligatory  arbitration,  however 
solemnly  made." 

B.   ACHIEVEMENTS 

The  accomplished  facts  of  the  two  conferences,  or  the 
questions  which  were  proposed,  discussed,  and  answered 
in  the  form  of  an  international  agreement,  are  to  be  found 
in  the  "conventions"  and  "declarations"  adopted  by 
the  conferences,  signed  by  the  delegations,  and,  when 
necessary,  ratified  by  the  governments. 

In  most  cases,  governmental  ratification  was  not  neces- 
sary after  the  duly  qualified  signatures  were  affixed; 
but  in  some  cases,  as  in  that  of  the  United  States,  rati- 
fication was  necessary  on  the  part  of  more  than  one 
branch  of  the  government.  For  example,  of  the  three 
conventions  and  three  declarations  adopted  by  the  Con- 
ference  of    1899,   the   American   delegation   signed   and 


464  THE   TWO   HAGUE   CONFERENCES 

the  United  States  Senate  ratified  three  conventions  and 
one  declaration;  of  the  thirteen  conventions  and  one 
declaration  adopted  by  the  Conference  of  1907,  the 
American  delegation  signed  ten  conventions  and  one 
declaration,  while  the  United  States  Senate  ratified  nine 
conventions  and  one  declaration. 

Although,  in  theory,  a  nation  is  bound  only  by  those 
agreements  adopted  by  the  two  conferences  which  have 
been  signed  by  its  delegation,  representing  the  executive, 
and  ratified  by  the  legislative  branch  of  the  government, 
where  the  latter  is  necessary,  still  in  practice  it  has  been 
shown  that  it  is  only  a  very  bold  and  hardened  govern- 
ment indeed  which  will  continue  long  to  resist  the  inter- 
national public  opinion  of  the  civilized  world  and  to  resort 
to  measures  condemned  by  the  Peace  Conferences.  Note- 
worthy illustrations  of  the  potency  of  international  public 
opinion  are  the  action  of  Great  Britain  in  accepting  the 
prohibition  of  "dum  dum"  bullets  and  asphyxiating 
bombs,  that  of  Spain  and  Mexico  in  renouncing  the 
practice  of  privateering,  that  of  Switzerland  and  China 
in  ratifying  the  laws  and  customs  of  warfare,  and  that 
of  the  Latin  American  republics  in  adhering  to  all  of  the 
acts  of  the  Conference  of  1899. 

Secretary  John  Hay,  in  his  instructions  to  the  United 
States  delegation  to  the  first  conference,  said:  "The 
proposed  conference  promises  to  offer  an  opportunity 
thus  far  unequaled  in  the  history  of  the  world  for  initiat- 
ing a  series  of  negotiations  that  may  lead  to  important 
practical  results."  That  the  conference  utilized  this  op- 
portunity to  a  remarkable  degree  is  the  verdict  of  history. 
Its  achievements  are  summarized  briefly  in  the  following 
pages. 


A   SUMMARY   OF    RESULTS  465 

a.  The  Conference  of  1899 

I.     WARFARE    IN    THE    AIR 

A  prohibition  was  placed  for  five  years  upon  the  hurling 
of  projectiles  from  balloons  or  by  other  new  analogous 
means.  The  prohibition  was  at  first  made  a  permanent 
one,  but  on  the  motion  of  Captain  Crozier,  of  the  United 
States,  it  was  reduced  to  the  term  of  five  years. 

Humanity  would  be  the  gainer,  it  was  argued,  from 
this  measure,  first,  because  warfare  could  not  be  waged 
from  or  in  the  air  for  at  least  five  years;  and  second, 
because  within  five  years  air  war  ships  would  be  given 
the  opportunity  of  developing  into  so  perfect  a  fighting 
machine  that  it  might  diminish  the  duration,  the  evils, 
and  the  expenses  of  wars.  Doubt  may  be  entertained 
as  to  the  consistency  of  the  two  parts  of  this  argument; 
but  there  can  be  no  doubt  that  the  conference  was  sincere 
in  its  desire  to  emphasize,  by  the  passage  of  this  pro- 
hibition, the  modern  determination  that  the  horrors  of 
warfare  shall  be  reduced  to  the  minimum,  and  that  the 
means  of  making  war  shall  not  be  unrestrictedly  and 
irresponsibly  increased. 

II.     WARFARE    ON    THE    SEA 

In  taking  up  a  consideration  of  this  topic,  the  Con- 
ference of  1899  entered  upon  an  almost  untra versed  realm. 
For  more  than  a  century  repeated  attempts  had  been 
made  to  establish  in  international  law  certain  principles 
for  the  regulation  of  warfare  on  the  sea;    but  the  only 


466  THE  TWO   HAGUE   CONFERENCES 

fruits  of  those  attempts  were  the  four  articles  of  the 
Declaration  of  Paris  of  1856,  which  were  only  partially 
accepted.  In  1899  there  were  only  two  achievements 
added  to  the  previous  ones;  but  these  were  almost  uni- 
versally accepted,  and  one  of  them  was  of  far-reaching 
importance. 

1.   Asphyxiating  Gases 

The  conference  adopted  the  agreement  to  abstain  from 
the  use  of  projectiles  the  object  of  which  is  the  diffusion 
of  asphyxiating  or  deleterious  gases.  Captain  Mahan, 
of  the  United  States,  opposed  this  agreement,  and  the 
American  and  British  delegations  were  the  only  ones  of 
the  twenty-six  which  refused  to  sign  it.  The  British 
delegation  announced  its  adhesion  to  it,  in  the  Conference 
of  1907,  and  the  Latin  American  republics  did  the  same. 

This  action  on  the  part  of  forty-three  out  of  forty-four 
of  the  world's  governments  is  probably  the  reason  why 
human  ingenuity  has  not  been  devoted  more  conspicuously 
to  the  invention  or  improvement  of  asphyxiating  bombs; 
and  it  will  doubtless  prevent  this  particular  means  of 
warfare  from  being  resorted  to  in  the  future. 


2.    The  Geneva  Convention 

The  ten  articles  adopted  at  the  Conference  of  Geneva 
in  1868  for  the  purpose  of  applying  to  naval  warfare  the 
rules  which  had  been  adopted  four  years  earlier  for 
hospital  service  in  warfare  on  the  land,  remained  a  dead 
letter  for  one  generation.     The  Conference  of  1899  then 


A  SUMMARY   OF   RESULTS  467 

took  them  up  and  breathed  into  them  the  breath  of  life. 
Not  only  was  the  overcoming  of  obstacles  to  their  adoption 
in  1899  a  marked  triumph  in  diplomacy  and  international 
law,  but  the  humanitarian  efforts  of  the  Red  Cross  have 
already  resulted  in  unmeasured  good  in  one  great  battle 
on  the  sea.  In  the  future,  upon  the  oceans  as  on  the  land, 
human  kindness  and  medical  science  are  to  be  given  a 
chance  to  mitigate  the  savage  brutalities  of  war. 


III.     WARFARE    ON   LAND 

The  Conference  of  Brussels  of  1874  adopted  a  declara- 
tion concerning  the  laws  and  customs  of  warfare  on  land; 
but  during  the  subsequent  quarter  century  this  declara- 
tion remained  unratified.  The  adoption  of  an  elaborate 
code,  growing  out  of  this  declaration  (which  was  itself 
the  outgrowth  of  the  United  States  Army's  General 
Order  No.  100,  issued  in  1863),  was  one  of  the  chief 
triumphs  of  the  Conference  of  1899.  The  Geneva  Con- 
vention, which  was  designed  for  and  has  succeeded 
in  the  alleviation  of  the  sufferings  caused  by  war,  is  de- 
servedly famous;  but  the  code  of  warfare  adopted  by 
the  first  Conference  at  The  Hague,  which  was  designed 
for  and  has  already  succeeded  in  the  prevention  of  many 
of  the  sufferings  of  warfare,  will  probably  become  even 
more  deservedly  famous. 

In  addition  to  this  code,  the  Conference  of  1899  is  to 
be  credited  with  two  other  achievements  in  regard  to 
warfare  on  land;  namely,  the  restriction  of  the  use  of 
unnecessarily  cruel  projectiles,  and  a  provision  for  the 
revision  of  the   Geneva  Convention  of  1864. 


468  THE  TWO   HAGUE   CONFERENCES 

i.   Bullets 

In  accordance  with  the  spirit  of  the  Declaration  of  St. 
Petersburg  of  1868,  the  Conference  of  1899  adopted  a 
prohibition  of  the  use  of  bullets  which  expand  or  flatten 
easily  in  the  human  body,  such  as  bullets  with  hard 
jackets  which  do  not  entirely  cover  the  core  or  have 
incisions  in  them.  The  British  and  American  delegations, 
while  declaring  their  sympathy  with  the  spirit  of  the 
Declaration  of  St.  Petersburg,  opposed  this  specific  pro- 
hibition, and  proposed  one  in  more  general  terms.  But 
the  conference  adopted  the  prohibition  as  stated  by  a  vote 
of  twenty-three  to  three.  The  three  powers  casting  the 
negative  vote  were  the  United  States,  Great  Britain,  and 
Portugal.  At  the  Conference  of  1907,  Great  Britain  and 
Portugal  announced  their  adhesion  to  the  prohibition 
adopted  in  1899,  and  the  Latin  American  republics  ac- 
cepted it  also.  The  United  States  delegation  renewed 
its  attempt  to  have  the  prohibition  made  more  general, 
but  failed  in  it. 

The  American  proposition  in  regard  to  bullets  was 
apparently  more  drastic  than  the  one  adopted;  but  the 
military  experts  of  Europe  and  South  America  agree  that  it 
would  not  abolish  the  use  of  bullets  unnecessarily  cruel,  while 
the  more  specific  rule  adopted  does  accomplish  this  purpose. 

2.    The  Geneva  Convention 

The  Conference  of  1899  adopted  the  desire  (voeu) 
that  a  special  conference  should  be  held  for  the  revision 
of  the  Geneva  Convention  of  1864.  In  accordance  with 
this  desire,  a  convention  was  held  in  Geneva  during  the 


A   SUMMARY    OF    RESULTS  469 

summer  of  1906,  and  expanded  the  original  ten  articles 
into  a  convention  of  thirty-three.  These  additions  were 
in  the  nature  of  additional  protection  to  the  sick,,  wounded, 
and  dead  found  on  battlefields,  and  to  their  caretakers 
and  places  of  refuge. 

This  revised  convention,  although  accomplished  seven 
years  after  the  Conference  of  1899,  was  made  possible 
by  it,  and  was  inspired  by  the  same  spirit.  In  the  words 
of  one  of  the  German  delegates  to  the  Conference  of 
Revision,  "the  Convention  of  Geneva  and  that  of  The 
Hague  are  sisters,  destined  to  walk  together  along  the 
path  of  civilization  towards  the  triumph  of  justice  and 
humanity." 

3.    The  Laws  and  Customs  of  Warfare  on  Land 

With  the  object  of  throwing  the  mantle  of  humanity 
over  the  arm  of  force,  of  restricting  the  cruelties  of  war- 
fare by  defining  its  rights  and  duties,  the  Conference  of 
1899  adopted  a  code  containing  sixty  articles. 

These  articles  admitted  corps  of  militia  and  volunteers, 
and  even  a  population  rising  en  masse  in  defense  of  their 
country,  as  well  as  regular  soldiers,  to  the  rights  and 
privileges  of  "belligerents,"  provided  they  respect  the 
laws  and  customs  of  warfare.  They  gave  generous  scope 
to  the  term  "  prisoners  of  war,"  and  provided  rigorously 
for  a  treatment  of  them  quite  in  accord  with  modern 
principles  of  imprisonment.  They  denied  the  possession 
of  an  unrestricted  right  by  belligerents  to  adopt  means  of 
injuring  the  enemy,  and  prohibited  the  use  of  seven  such 
means.  They  prohibited  the  bombardment  of  undefended 
towns  and  buildings,  prescribed  means  of  diminishing  the 


470  THE   TWO   HAGUE   CONFERENCES 

evils  of  bombardment  of  fortified  places,  and  prohibited 
a  resort  to  pillage,  even  after  a  successful  assault.  They 
restricted  the  scope  of  the  term  "spies,"  and  provided 
that  captured  spies  shall  be  tried  before  being  punished. 
They  protected  the  inviolability  of  bearers  of  flags  of  truce. 
They  laid  down  strict  regulations  for  the  maintenance 
of  armistice,  and  prescribed  that  capitulations  should  be 
exacted  in  accordance  with  the  rules  of  military  honor. 
And,  finally,  without  acknowledging  the  right  of  conquest, 
they  endeavored  to  moderate  its  conditions  by  strictly 
defining  "occupied  territory,"  prescribing  efficiency  and 
moderation  in  its  government,  forbidding  the  invader 
to  compel  the  population  to  take  an  oath  of  allegiance 
to  him  or  to  take  part  in  operations  against  their  country, 
protecting  the  civil,  religious,  and  property  rights  of  the 
population,  and  by  protecting  public  works  and  the  prop- 
erty of  municipalities  and  of  religious,  charitable,  and 
educational  institutions. 

So  valuable  has  this  code  of  laws  been  considered  by 
international  jurists  that  Professor  Zorn,  of  Germany, 
said  that  it  alone  would  have  made  the  Conference  of 
1899  a  remarkable  success;  and  Professor  de  Martens, 
of  Russia,  said  that  it  will  certainly  be  as  notable  as  the 
treaty  on  arbitration.  These  estimates  are  due  to  the 
fact  that  it  has  replaced  the  old  adage,  "In  the  midst  of 
warfare  laws  are  silent,"  by  the  new  one,  "In  the  midst 
of  warfare  laws  shall  rule." 

IV.    ARBITRATION 

The  convention  adopted  by  the  Conference  of  1899 
for  the  peaceful   settlement   of  international   differences 


A  SUMMARY  OF   RESULTS  47 1 

has  been  called  the  Magna  Charta  of  International  Law; 
and  it  has  been  argued  that  just  as  Magna  Charta  was  the 
basis  of  all  later  development  of  English  liberty,  so  the 
convention  of  1899  must  ever  remain  the  keystone  of  the 
arch  of  international  justice.  Its  adoption,  in  the  words 
of  Baron  d'Estournelles,  has  solemnly  characterized  war 
as  a  conflagration,  and  commissioned  every  responsible 
statesman  a  fireman  with  the  prime  duty  of  putting  out 
the  fire  or  preventing  its  spread. 

Its  provisions  for  the  peaceful  settlement  of  disputes, 
entirely  voluntary  though  they  are,  unquestionably  facili- 
tate the  avoidance  of  war;  and  its  increasingly  success- 
ful operation  is  confidently  expected  to  result  in  the 
limitation  and  probably  the  reduction  of  armaments. 
Hence  it  has  supplied  a  positive  programme  to  the  "peace 
movement,"  which  no  longer  emphasizes  solely  or  chiefly 
the  evils  of  war,  but  insists  upon  the  organization  of 
a  practical  means  of  avoiding  it.  The  barracks  or  war- 
ship philosophy  of  peace  is  no  longer  merely  denounced, 
but  it  is  brought  into  destructive  competition  with  a  peace- 
ful philosophy  of  peace.  The  mediaeval  adages,  "In 
time  of  peace,  prepare  to  make  war,"  and  "If  you  wish 
for  peace,  prepare  for  war,"  are  replaced  by  the  modern 
ones,  "In  time  of  peace,  prepare  to  make  war  impossible" 
and  "If  you  wish  for  peace,  prepare  for  peace."  A  court 
and  not  barracks,  statesmanship  instead  of  a  war  ship, 
are  the  standard  raised  by  the  arbitration  convention  of 
1899. 

It  is  true  that  since  the  first  Peace  Conference  two 
terrible  wars  have  occurred;  but  it  is  also  true  that  at 
least  two  wars,  possibly  as  terrible,  have  been  averted 
by  the  operation  of  the  simple  means  provided  by  the 


472  THE   TWO    HAGUE   CONFERENCES 

conference,  and  that  four  important  international  dis- 
putes have  been  settled  by  its  court  of  arbitration.  This 
record,  of  only  seven  years,  is  full  of  encouragement; 
while  the  many  separate  treaties  of  arbitration,  which 
have  been  largely  the  outgrowth  of  the  first  conference, 
and  the  impulse  given  to  arbitration  in  various  ways, 
have  undoubtedly  enlarged  the  empire  of  law  in  inter- 
national relations  and  fortified  the  sentiment  of  inter- 
national justice. 

Secretary  Root,  in  his  instructions  to  the  United  States 
delegation  to  the  second  conference,  alluded  to  the  many 
separate  treaties  of  arbitration  between  individual  countries, 
and  said  that  "this  condition,  which  brings  the  subject 
of  a  general  treaty  for  obligatory  arbitration  into  the 
field  of  practical  discussion,  is  undoubtedly  largely  due 
to  the  fact  that  the  powers  generally  in  the  first  Hague 
Conference  committed  themselves  to  the  principle  of 
the  pacific  settlement  of  international  questions  in  the 
admirable  convention  for  voluntary  arbitration  then 
adopted." 

i.    Good  Offices  and  Mediation 

The  agreement  adopted  by  the  conference  that  powers 
in  dispute  would  have  recourse  to  the  good  offices  or 
mediation  of  one  or  more  friendly  powers,  before  an  ap- 
peal to  arms,  in  case  of  any  serious  dispute,  and  as  far 
as  circumstances  permit,  was  supplemented  by  the  further 
statement  that  the  signatory  powers  consider  it  useful 
that  one  or  more  powers,  strangers  to  the  dispute,  should, 
on  their  own  initiative,  and  as  far  as  circumstances  permit, 
offer  their  good  offices  or  their  mediation  to  the  states 


A   SUMMARY   OF   RESULTS  473 

at  variance  with  each  other.  The  restriction  of  this 
agreement  by  the  phrase,  "as  far  as  circumstances  permit," 
was  considered  an  unfortunate  one,  but  was  adopted 
because  the  conference  did  not  desire  to  attempt  more 
than  the  powers  could  reasonably  be  expected  to  carry  out. 

When  the  principle  embodied  in  these  agreements  is 
compared  with  the  former  jealous  resentment  of  any 
"foreign  intervention"  which  dominated  international  rela- 
tions before  1899,  the  progress  made  by  the  conference 
in  the  mere  frank  statement  of  it  is  apparent.  But  when 
it  is  recalled  that,  inspired  by  it,  President  Roosevelt  ex- 
tended the  good  offices  of  the  United  States  government 
to  Japan  and  Russia  in  their  recent  war,  and  that  the 
Peace  of  Portsmouth,  New  Hampshire,  was  the  fortunate 
result,  the  value  of  this  feature  of  the  convention  of  1899 
is  greatly  proven  by  an  accomplished  fact  of  vast  historic 
import. 

The  desirability  of  a  more  frequent  resort  to  this  means 
of  avoiding  or  shortening  a  war  was  emphasized  in  the 
Conference  of  1907,  which  adopted  the  words,  "and 
desirable,"  to  the  former  statement  that  the  powers  con- 
sider good  offices  and  mediation  "useful."  This  slight 
addition  to  the  phraseology  of  1899  mav  n°t  have  directly 
the  desired  result  of  increasing  the  frequency  of  good 
offices  and  mediation;  but  it  at  least  emphasizes  the 
former  statement  that  their  extension,  even  during  the 
course  of  hostilities,  shall  not  be  considered  by  either 
of  the  parties  to  the  dispute  as  an  unfriendly  act.  The 
consistent  adoption  of  this  latter  view,  together  with  the 
growing  conviction  that  the  interests  of  one  are  the  interests 
of  all  in  the  family  of  states,  will  increase  the  frequency 
of  this  means  of  preventing  war  and  insuring  justice. 


474  THE  TW0   HAGUE   CONFERENCES 

2.  International  Commissions  of  Inquiry 

The  statement  that  the  powers  consider  the  establish- 
ment of  international  commissions  of  inquiry  to  be  a 
" useful"  method  of  avoiding  warfare  was  adopted  in 
1899  after  a  long  struggle.  But  it  was  hedged  about  with 
conditional  phrases  as  to  honor,  essential  interests,  and 
circumstances  permitting;  and  in  1907  it  was  strengthened 
only  by  the  addition  of  the  words,  "and  desirable." 

This  statement,  most  moderate  in  its  form  and  referring 
to  a  purely  voluntary  measure  on  the  part  of  disputants, 
is  a  striking  illustration  of  the  importance  of  holding  up 
a  standard  to  which  the  wise  and  the  honest  may  repair. 
Issued  by  the  first  conference,  and  made  practicable  by 
the  adoption  of  a  few  simple  rules  of  procedure,  it  enabled 
the  great  powers  of  Russia  and  Great  Britain  to  settle 
speedily  and  peacefully  a  grave  dispute  which  arose  be- 
tween them  six  years  after  the  conference  adjourned. 
The  incident  of  the  Hull  Fishermen,  or  the  Dogger  Bank, 
was  of  historic  importance  not  only  as  showing  the  influ- 
ence of  a  simple  statement  of  belief,  but  as  showing  also 
that  even  disputes  in  which  "honor  and  essential  inter- 
ests" are  involved  may  be  settled  by  the  peaceful  and 
rational  method  of  international  commissions  of  inquiry. 

The  adoption  of  the  wise  motto,  "Investigate  before 
you  fight,"  will  inevitably  result  many  times  in  proving 
the  truth  of  the  saying,  "Investigate  and  you  won't  fight." 

3.  Tfie  Permanent  Court  of  Arbitration 

The  idea  of  a  permanent  international  court  of  arbitra- 
tion was  one  of  profound  statesmanship ;   its  recommenda- 


A   SUMMARY   OF    RESULTS  475 

Hon  to  the  powers  would  have  been  a  long  step  in  advance ; 
while  the  actual  establishment  of  it  was  a  veritable  triumph, 
—  the  crowning  glory,  it  has  been  universally  admitted, 
of  the  first  Peace  Conference. 

The  competence  of  jurisdiction  conferred  upon  the 
court,  and  the  careful  arrangements  made  for  its  operation, 
were  designed  to  make  it  the  regular,  though  entirely 
voluntary,  forum  of  international  justice.  The  famous 
Article  27,  which  declared  it  to  be  the  duty  of  the 
powers  to  remind  disputants  of  the  existence  of  the  court 
and  its  adaptability  to  the  peaceful  solution  of  inter- 
national disputes,  was  adopted  for  the  purpose  of  making 
it  the  frequent,  as  well  as  the  regular,  means  of  settling 
difficulties  before  which  diplomacy  should  fail. 

The  cases  which  have  been  brought  before  the  Per- 
manent Court  have  been  of  very  great  importance,  but 
have  been  only  four  in  number,  while  it  is  believed  that 
several  other  cases  of  grave  import  should  have  been 
brought  before  it.  An  article  was  therefore  adopted  in 
1907  providing  that  either  disputant,  without  making  an 
agreement  with  its  opponent,  or  waiting  for  the  reminder 
from  the  powers  provided  for  in  Article  27,  might 
of  its  own  initiative  report  its  willingness  to  arbitrate 
to  the  International  Bureau,  which  shall  then  inform 
all  the  powers  of  the  fact,  leaving  them  to  perform  their 
duty  in  the  premises.  It  is  confidently  believed  that  this 
amendment  will  result  in  sending  more,  and  even  the 
most  crucial  of  questions,  to  the  decision  of  the  Permanent 
Court,  instead  of  to  trial  by  battle. 

The  importance  of  the  Permanent  Court  of  Arbitration 
should  be  measured,  not  only  by  its  important  achieve- 
ments during  the  few  years  of  its  existence,  but  also  by 


476  THE   TWO   HAGUE  CONFERENCES 

the  estimates  of  its  founders,  —  those  great  international 
statesmen  who,  by  creating  it,  gave  expression  to  the 
highest  aspirations  of  their  own  century,  and  foresaw 
and  provided  for  the  needs  of  the  next.  President  de 
Staal,  in  his  final  address  to  the  conference,  declared 
.that  the  convention  which  provided  for  its  establishment 
opened  a  new  era  in  the  domain  of  international  law 
and  would  be  called  by  posterity  "the  first  international 
code  of  peace."  Chevalier  Descamps,  in  reporting  the 
work  of  the  committee  to  the  conference,  said  of  its  im- 
portance : 

"When  one  seeks  through  the  history  of  international  law,  — 
from  the  day  when  that  law  was  placed  upon  firm  foundations  by 
the  man  of  genius  to  whom  America  has  recently  rendered  brilliant 
homage  on  his  native  soil,  —  when  one  seeks  some  page  comparable 
with  that  which  the  Conference  of  The  Hague  has  just  written,  it 
seems  difficult  to  find  one  more  fruitful." 

Secretary  John  Hay,  in  his  instructions  to  the  United 
States  delegation  to  the  first  conference,  expressed  a 
sentiment  which,  though  anticipating  the  Permanent 
Court  of  Arbitration,  will  forever  remain  an  illuminating 
comment  upon  its  importance  as  well  as  upon  that  of  all 
similar  agencies  of  international  law  and  justice. 

"The  duty  of  sovereign  states,"  he  wrote,  "to  promote  inter- 
national justice  by  all  wise  and  effective  means  is  only  secondary  to 
the  fundamental  necessity  of  preserving  their  own  existence.  Next 
in  importance  to  their  independence  is  the  great  fact  of  their  inter- 
dependence. Nothing  can  secure  for  human  government  and  for 
the  authority  of  law  which  it  represents  so  deep  a  respect  and  so 
firm  a  loyalty  as  the  spectacle  of  sovereign  and  independent  states, 
whose  duty  it  is  to  prescribe  the  rules  of  justice  and  impose  penal- 
ties upon  the  lawless,  bowing  with  reverence  before  the  august 
supremacy  of  those  principles  of  right  which  give  to  law  its  eternal 
foundation." 


A   SUMMARY    OF    RESULTS  477 


b.    The  Conference   of  1907 

The  difficulty,  the  impossibility  perhaps,  of  forming 
at  present  a  just  estimate  of  the  historic  importance  of 
so  recent  an  assembly  as  the  second  Peace  Conference, 
needs  no  argument  with  students  of  history.  All  that 
will  be  attempted  here  is  to  suggest  a  few  considerations 
prerequisite  to  such  an  estimate,  to  quote  the  opinion 
of  a  few  men  who  participated  prominently  in  the  work 
of  the  conference  itself,  and  to  summarize  briefly  its 
achievements. 

Students  of  these  achievements  should  not  forget  that  the 
growth  of  institutions,  even  national  ones,  is  necessarily 
and  desirably  slow;  for  not  only  must  national  prejudices 
be  overcome  and  national  interests  reconciled,  in  the  mak- 
ing of  international  agreements,  but  these  agreements, 
to  be  binding  and  fruitful,  must  be  neither  forced  nor 
reluctant.  It  should  not  be  forgotten,  either,  that  no 
human  assembly  can  accomplish  all  that  ought  to  be 
done,  or  all  that  is  expected  of  it ;  and  that  by  emphasiz- 
ing unduly  its  failures,  its  real  successes  may  be  unduly 
minimized. 

In  judging  of  the  work  of  this  "parliament  of  man," 
we  should  remember  the  slow  and  often  disappointing 
results  of  the  parliaments  of  nations.  We  should  re- 
member, too,  that  the  international  assembly,  unlike 
national  legislatures,  was  composed  of  representatives 
of  every  kindred,  tongue,  and  nation;  and  that  the  dele- 
gates, though  possibly  in  advance  of  the  political  and 
moral  standards  of  their  own  people,  were  bound  by 
strict    instructions   from   governments    which   necessarily 


478  THE  TWO   HAGUE  CONFERENCES 

reflected  the  diverse  institutions  and  ideals  of  their  re- 
spective nations.  It  should  be  remembered,  also,  that 
in  an  assembly  of  the  representatives  of  sovereign  and 
independent  states,  the  rule  of  the  majority  and  the 
enforcement  of  parliamentary  law  were  subordinated 
to  the  necessity  of  practical  unanimity  and  of  voluntary 
agreement. 

In  view  of  these  limitations  and  obstacles,  the  achieve- 
ments of  the  second  Peace  Conference  were  far  more 
than  could  have  been  reasonably  expected;  while  taken 
by  themselves  they  afford  a  cause  of  present  gratification 
and  a  rich  promise  of  increasing  fruitfulness. 


I.     WARFARE    IN   THE   AIR 

The  prohibition  upon  the  hurling  of  projectiles  from 
balloons,  which  was  imposed  by  the  first  conference, 
was  renewed  by  the  second,  and  increased  from  the 
former  duration  of  five  years  to  that  of  "the  end  of  the 
next  conference." 

Whatever  may  be  the  final  result  of  international  legis- 
lation on  this  matter,  the  next  seven  years  are  to  be 
saved  from  the  horrors  of  a  warfare  from  on  high, 
in  which  the  elements  of  uncertainty  and  the  lack 
of  adequate  control  of  engines  of  destruction  so  largely 
prevail. 

One  of  the  laws  and  customs  of  warfare  on  land,  adopted 
in  1907,  was  a  permanent  prohibition  of  the  bombard- 
ment of  undefended  towns  and  buildings  by  artillery,  by 
the  launching  of  projectiles-  or  explosives  from  balloons, 
or  by  any  means  whatever. 


A   SUMMARY   OF   RESULTS 


II.     WARFARE    ON   THE    SEA 


479 


The  regulation  of  warfare  on  the  sea  was  a  task  full 
of  difficulties  both  technical  and  delicate.  The  questions 
discussed  were  burning  ones  which  recent  bitter  events 
had  made  prominent,  and  every  one  had  to  be  considered 
from  the  point  of  view  of  both  belligerent  and  neutral, 
while  the  interests  of  both  continental  and  maritime 
powers  had  to  be  reconciled. 

The  Congress  of  Paris  of  1856  and  the  Peace  Con- 
ference of  1899,  with  their  handful  of  rules,  were  the  only 
precursors  of  the  second  conference  in  the  vast  task  of 
regulating  naval  warfare.  To  the  four  or  five  former 
rules,  the  second  conference  added  a  full  score;  and  its 
deliberations  upon  questions  still  unsolved  will  un- 
doubtedly become  the  basis  of  the  future  solutions  of 
several  other  knotty  problems.  In  the  words  of  the 
reporter  of  the  IV  Commission,  which  accomplished 
so  much  of  this  difficult  labor:  "The  result  achieved 
to-day  is  only  the  corner  stone  of  the  edifice  universally 
expected  and  desired,  whose  completion  can  not  be  hoped 
for  in  a  few  months.  Devotion  to  law  and  the  spirit  of 
equity  and  conciliation,  by  which  the  labors  of  this  com- 
mission have  not  ceased  to  be  inspired,  are  the  best  gauge 
of  the  future." 

The  Russian  delegates,  Professor  de  Martens,  president 
of  the  IV  Commission,  and  M.  Nelidow,  president  of  the 
conference,  reflected  the  importance  attached  by  their 
country  to  the  solution  of  the  naval  questions  which  the 
Russo-Japanese  War  had  pressed  forward,  by  declaring 
that  praise  or  criticism  of  the  conference  would  be  equiva- 
lent to  praise  or  criticism  of  the  code  of  maritime  law 


480  THE  TWO   HAGUE   CONFERENCES 

which  it  adopted,  since  the  two  were  indissolubly  bound 
together;1  and  that  the  code  of  maritime  law  was  even 
more  important  than  what  had  been  accomplished  for 
arbitration.2 

The  International  Prize  Court,  which  is  classed  in 
this  book  with  the  other  international  courts  under  the 
section  of  arbitration,  may  also  rightly  be  looked  upon  as 
a  triumph  within  the  domain  of  the  regulation  of  warfare 
on  the  sea.  And  this  court  Sir  Edward  Fry,  of  Great 
Britain,  declared  to  be  the  most  remarkable  of  all  the 
measures  adopted  by  the  conference,  "because,"  he  ex- 
plained, "this  is  the  first  time  in  the  history  of  the  world 
that  there  has  been  organized  a  truly  international  court. 
International  law  to-day,"  he  continued,  "is  nothing  else 
than  a  chaos  of  opinions  which  are  often  contradictory 
and  of  decisions  of  national  courts  based  on  national 
laws.  We  hope  to  see  growing  up  little  by  little  around 
this  court  a  system  of  laws  truly  international  which  shall 
owe  its  existence  solely  to  the  principles  of  equity  and 
justice,  and  which  will  therefore  deserve  not  only  the 
admiration  of  the  world,  but  the  respect  and  obedience 
of  civilized  nations." 3  This  system  of  international 
prize  law,  the  outgrowth  of  the  prize  court  established 
by  the  second  conference,  will  also  look  back  to  that 
conference  as  its  primal  source. 

i.   Submarine  Mines 

The  prohibition  of  the  use  of  unanchored  mines,  unless 
constructed  in  such  manner  as  to  become  harmless  within 

1  Professor  de  Martens,  in  his  final  address  to  the  IV  Commission. 

2  President  Nelidow,  in  his  final  address  to  the  conference. 

3  Sir  Edward  Fry,  in  his  address  to  the  conference  at  its  last  plenary  session. 


A   SUMMARY    OF   RESULTS  481 

one  hour  after  their  control  has  been  lost;  the  prohibition 
.of  the  use  of  anchored  mines  which  do  not  become  harm- 
less as  soon  as  they  break  their  cables;  the  prohibition 
of  the  use  of  automobile  torpedoes  which  do  not  become 
harmless  when  they  have  missed  their  aim;  the  pro 
hibition  of  the  placing  of  mines  along  the  coasts  and  in 
front  of  the  ports  of  the  enemy,  with  the  sole  purpose  of 
intercepting  commerce;  the  requirement  that  every  pre- 
caution be  taken  to  protect  peaceful  navigation  against 
submarine  mines;  and  the  agreement  that  belligerents 
shall  cause  them  to  become  harmless  after  a  limited  time 
by  removing  them,  or  guarding  them,  or  indicating  the 
dangerous  regions  and  notifying  the  other  powers  of 
them ;  —  such  were  the  important  regulations  prescribed 
by  the  second  conference  for  the  use  of  submarine  contact 
mines  and  torpedoes. 

In  view  of  the  great  destruction  to  neutral  commerce 
caused  in  the  past  by  these  "demons  of  the  sea,"  and  in 
view  of  the  fact  that  this  was  the  first  attempt  to  regulate 
their  use  by  belligerents  and  neutrals  alike,  the  achieve- 
ment of  the  conference  in  this  respect  was  of  great  im- 
portance. It  is  true  that  the  British  delegation  gave 
public  expression  to  its  keen  disappointment  that  the 
rules  did  not  go  still  farther  and  prohibit  the  use,  under 
any  conditions,  of  unanchorcd  mines,  and  restrict  the 
area  of  anchored  mines.  But  in  the  regulations  adopted, 
a  very  long  step  was  taken;  and  the  earnest  solicitude 
of  the  greatest  maritime  power  of  the  world  in  regard  to 
the  matter  will  be  a  potent  force  in  developing  the  existing 
rules  into  still  more  drastic  ones.  And  meanwhile,  the 
public  acknowledgment,  by  Germany's  first  delegate,  of 
the  belligerent's  heavy  responsibility  to   neutrals   in    the 


482  THE  TWO   HAGUE   CONFERENCES 

placing  of  mines,  will  be  enforced;  while  his  assertion 
that  conscience,  good  sense,  and  the  sentiment  of  duty 
imposed  by  the  principles  of  humanity  will  form  an  even 
more  effective  guarantee  against  the  abuses  of  mines  than 
international  law  itself,  will  be  impressed  upon  belligerent 
governments  and  the  admirals  whom  they  instruct. 

2.    Naval  Bombardment 

Bombardment  by  naval  forces  wras  regulated  by  a  series 
of  important  rules.  The  bombardment  of  undefended 
ports,  towns,  villages,  dwellings,  or  buildings,  was  pro- 
hibited. Bombardment  for  the  enforcement  of  a  money 
ransom  was  prohibited,  as  was  also  pillage,  even  in  the 
case  of  towns  captured  by  assault.  The  right  of  de- 
stroying by  bombardment  the  military  and  naval  equip- 
ment in  undefended  ports,  etc.,  was  restricted  by  the 
proviso  that  the  local  authorities  should  first  be  given  a 
reasonable  time  in  which  to  perform  the  destruction  them- 
selves; if  military  necessities  demand  immediate  bom- 
bardment, and  no  other  means  can  be  found  to  destroy 
such  equipment,  then  the  naval  force  may  bombard  them, 
but  every  precaution  must  be  taken  to  protect  the  port 
itself.  The  right  of  bombarding  an  undefended  port, 
etc.,  to  enforce  a  requisition  of  stores  or  provisions  was 
restricted  by  the  proviso  that  such  stores  must  be  in  accord 
with  the  resources  of  the  port  requisitioned,  must  be 
sanctioned  by  the  commandant  of  the  naval  force,  and 
must  be  paid  for,  in  cash  when  possible,  or  vouched  for 
by  written  receipts. 

The  conference  did  not  define  precisely  what  it  meant 
by  "undefended"  ports,  etc.,  but   it   acquiesced   in   the 


A   SUMMARY   OF    RESULTS  483 

statement  that  an  unfortified  town  situated  near  a  fortified 
coast  is  an  undefended  town;  and  it  voted  that  a  port 
before  which  automatic  submarine  mines  of  contact  are 
anchored  is  not  to  be  considered  subject  to  bombardment 
because  of  that  fact. 

The  importance  of  these  rules  has  been  minimized 
because  they  prevent  only  the  bombardment  of,  and 
not  the  landing  of  troops  in,  undefended  ports.  But 
this  is  to  condemn  the  present  because  it  is  not  the  future. 
The  importance  of  the  rules  as  far  as  they  go  is  evident. 
They  are  calculated  to  save  anxiety,  suffering,  the  loss 
of  life  and  property;  they  restrict  naval  warfare,  as  has 
been  the  case  with  land  warfare,  to  contests  between 
armed  forces,  and  exempt  non-combatants  and  the  de- 
fenseless from  its  horrors;  and  they  will  probably  induce 
governments  to  avoid  the  waste  of  money  in  the  erection 
of  forts  which  not  only  become  speedily  antiquated,  with 
improvements  in  naval  armaments,  but  which  may  draw 
the  fire  of  those  armaments  upon  sea-coast  towns  and 
peoples. 

3.   Merchant  Ships  transformed  into  Cruisers 

The  danger  that  the  practice  of  transforming  merchant 
ships  into  cruisers  in  time  of  war  might  restore  the  old 
system  of  privateering  which  the  Declaration  of  Paris 
of  1856  abolished,  was  recognized  by  the  Conference  of 
1907,  which  regulated  it  by  a  half-dozen  rules.  These 
rules  provide  that  a  transformed  merchant  ship  may 
acquire  the  rights  and  privileges  of  war  ships  only  when 
placed  under  the  immediate  control  and  responsibility 
of  the  state  whose  flag  it  flies,  with  a  commander  duly 


484  THE  TWO   HAGUE  CONFERENCES 

commissioned  by  the  state,  and  a  crew  under  military 
discipline;  and  when  bearing  the  distinctive  external 
marks  of  the  war  ships  of  its  nation.  These  ships  must 
conform  to  the  laws  and  customs  of  war ;  and  their  trans- 
formation must  be  published  in  the  state's  official  list  of 
war  ships. 

The  object  and  result  of  these  rules  will  be  to  make 
piracy  more  difficult,  to  restrict  privateering,1  and  to  bring 
all  naval  combats  within  the  rules  adopted  for  the  human- 
izing of  warfare. 


4.   Restrictions  on  the  Right  of  Capture 

Although  the  American  proposition  to  exempt  private 
property  from  capture  in  naval  warfare  was  not  adopted 
by  the  conference,  several  restrictions  on  this  right  of 
capture  were  adopted. 

Merchant  ships  of  belligerents,  except  those  evidently 
intended  for  transformation  into  war  ships,  cannot  be 
confiscated,  whether  they  be  in  the  enemy's  ports  on  the 
outbreak  of  hostilities,  or  enter  them  after  that  event  in 
ignorance  of  it,  or  are  captured  on  the  high  seas  in  igno- 
rance of  the  war.  They  must  be  given  a  sufficient  warning 
to  depart,  in  the  first  two  cases,  and  if  they  do  not  or  can 
not  heed  this  warning,  they  may  only  be  detained  until 
the  end  of  the  war,  or  requisitioned  on  payment  of  com- 
pensation; and  in  the  third  case,  they  may  be  detained 
until  the  end  of  the  war,  or  requisitioned  or  even  destroyed 
on  payment  of  compensation.     The  same  rules  apply  to 

1  In  accordance  with  the  policy  of  the  United  States  in  regard  to  privateering 
and  the  capture  of  private  property  in  naval  warfare,  the  United  States  delega- 
tion did  not  sign,  and  the  United  States  Senate  did  not  ratify,  this  convention. 


A   SUMMARY   OF    RESULTS  485 

cargoes  on  board  the  above  three  classes  of  merchant 
ships.1 

The  officers  and  crews  of  captured  merchant  ships  are 
not  to  be  made  prisoners  of  war,  whether  they  are  citizens 
of  a  neutral  or  of  a  belligerent  state,  provided  they  sign 
a  promise  in  writing  that  they  will  not  take  part  in  the 
war.2 

Boats  used  exclusively  for  fishing  purposes,  and  all 
ships  engaged  upon  scientific,  religious,  or  philanthropic 
missions,  were  exempted  from  capture. 

The  postal  correspondence  of  both  neutrals  and  bellig- 
erents was  made  inviolable,  and  must  be  forwarded  with 
the  least  possible  delay  in  case  the  ship  conveying  it  is 
detained  or  captured. 

These  various  rules  are  all  in  the  direction  of  canalizing 
warfare,  —  of  restricting  its  wastes  and  injuries  to  defi- 
nite channels,  and  of  protecting  from  its  ravages  the 
normal  world  of  peace  and  commerce. 

5.    Belligerents  in  Neutral  Waters 

The  absolute  sovereignty  of  neutral  states,  and  its 
inviolability  during  warfare,  is  made  the  basis  of  the 
rules  adopted  for  the  conduct  of  belligerents  in  neutral 
waters.  These  rules  3  have  to  do  with  the  entrance  and 
stay,  the  repairs,  revictualing,  and  recoaling,  the  number 

1  The  United  States  delegation  and  the  Senate  rejected  this  convention 
because  of  the  American  demand  that  all  merchant  ships  and  cargoes  of 
belligerents,  except  in  the  case  of  contraband  or  blockade,  shall  be  exempt 
from  capture. 

2  Neutral  members  of  the  crew  arc  required  to  make  no  promise;  neutral 
officers  must  promise  not  to  serve  on  an  enemy  ship  while  the  war  lasts; 
belligerent  officers  and  members  of  the  crew  must  promise  not  to  take  part 
in  any  warlike  operations. 

3  See  pages  149-157. 


486  THE   TWO   HAGUE   CONFERENCES 

and  departure,  of  belligerent  war  ships  in  neutral  waters; 
they  -strictly  forbid  military  preparations  or  operations 
within  neutral  waters,  on  the  part  of  belligerents;  and 
they  authorize  and  expect,  and  generally  require,  the 
neutral  states  to  enforce  these  rules  by  every  means  in 
their  power,  asserting  that  such  enforcement  cannot  be 
looked  upon  by  either  belligerent  as  in  any  sense  an  un- 
friendly act. 

The  United  States  delegation  did  not  sign  the  con- 
vention which  embodied  these  rules;  but  the  United 
States  Senate  has  advised  and  consented  to  the  adherence 
of  the  United  States  to  it  under  two  conditions:  first, 
that  the  rule  be  excluded  which  provides  that  a  neutral 
power  may  allow  prizes  to  enter  its  ports  and  roadsteads, 
whether  under  convoy  or  not,  when  they  are  brought 
there  to  be  sequestrated  pending  the  decision  of  a  prize 
court,  etc.  (Article  23) ;  and  second,  that  it  be  understood 
that  the  last  clause  of  Article  3  implies  the  duty  of  a 
neutral  power  to  make  the  demand  therein  mentioned 
for  the  return  of  a  ship  captured  within  the  neutral  juris- 
diction. 

The  adoption  of  the  rules  regulating  the  conduct  of 
belligerents  in  neutral  waters  will  prevent  the  recurrence 
of  many  exasperating  and  dangerous  complications  be- 
tween neutrals  and  belligerents;  and  they  assert  in  un- 
mistakable terms  the  absolute  sovereignty  of  neutral 
states  in  their  relations  with  belligerents,  and  their  in- 
violable right  to  be  left  unmolested  in  their  normal  con- 
dition of  peace  as  the  ravages  of  war  sweep  past  them. 

The  rules  adopted  did  not  cover  all  the  questions  which 
may  arise  between  neutrals  and  belligerents,  in  naval 
warfare,  but  the  convention  includes  the  rule  that  the 


A  SUMMARY   OF   RESULTS  487 

contracting  powers  shall  communicate  to  each  other  in 
due  course  all  laws,  proclamations,  and  other  enactments 
regulating  in  their  respective  countries  the  status  of 
belligerent  war  ships  in  their  ports  and  waters.  In  this 
way  it  is  hoped  that  complete  national  codes  of  laws  shall 
be  adopted,  which  shall  approximate  uniformity  and 
become  the  basis  of  a  definite  system  of  international 
law  covering  every  aspect  of  this  important  question. 


III.     WARFARE    ON    LAND 

The  great  achievement  of  the  Conference  of  1899,  in 
relation  to  warfare  on  land,  was  a  codification  of  its  laws 
and  customs  in  regard  to  operations  on  the  theater  of  war; 
the  great  achievement  of  the  Conference  of  1907,  in  rela- 
tion to  warfare  on  land,  was  the  codification  of  its  laws 
and  customs  as  regards  neutral  states  and  citizens. 

Like  the  convention  relating  to  the  conduct  of  belligerents 
in  neutral  waters,  the  convention  relating  to  neutrals  on 
land  did  not  attempt  to  provide  for  all  possible  cases  of 
misunderstanding  and  dispute ;  but  it  took  up  the  subject 
from  the  point  of  view  both  of  neutral  states  and  of  neutral 
residents  of  belligerent  territory,  and  made  decided  prog- 
ress with  both  of  these  aspects  of  a  knotty  problem. 
It  revised  also  the  laws  and  customs  of  warfare  on  land, 
adopted  in  1899,  in  a  number  of  important  particulars. 

1.    The  Rights  and  Dulles  of  Neutrals 

As  in  the  case  of  the  convention  relating  to  belligerents 
in  neutral  waters,  so  in  the  convention  relating  to  the 


488  THE   TWO   HAGUE   CONFERENCES 

rights  and  duties  of  neutrals  on  land,  the  inviolability  of 
neutral  states  is  made  the  basis  of  the  articles  adopted. 

These  articles  forbid  belligerents  to  perform  certain 
acts  to  their  own  military  advantage  on  the  territory  of 
a  neutral  state,  and  they  fix  carefully  the  responsibility 
of  the  neutral  state  in  preventing  the  performance  of  those 
acts;  they  define  the  relation  of  a  neutral  state  towards 
belligerent  soldiers,  invalids,  and  wounded;  they  define 
and  protect  the  rights  of  neutrals  residing  within  the 
territory  of  belligerents;  and  they  protect  the  property 
of  railway  companies  belonging  to  neutrals  but  operating 
within  belligerent  territory.  The  conference  also  adopted 
two  desires  (vceux)  that  the  authorities  of  belligerent  states 
shall  make  it  their  special  duty  to  protect  peaceful  in- 
dustrial relations  with  neutrals,  and  that  the  powers  shall 
endeavor  to  establish  by  separate  treaties  uniform  regu- 
lations concerning  the  military  obligations  exacted  of 
resident  aliens. 

The  importance  of  the  above  rules  lies  in  the  twofold 
fact  that  they  lessen  the  anxieties  and  hardships  of  neu- 
trals residing  within  belligerent  territory,  and,  by  removing 
some  vexed  uncertainties  as  to  the  relations  between  neutral 
and  belligerent  states,  they  diminish  the  danger  of  warfare 
between  them  and,  at  the  same  time,  help  to  preserve  in- 
tact the  normal  peaceful  intercourse  of  trade  and  com- 
merce between  their  citizens. 

2.    The  Laws  and  Customs  of  Warfare  on  Land 

The  following  noteworthy  rules  were  added  in  1907  to 
the  important  code  of  1899:  a  declaration  of  war,  stating 
its  causes,  or  an  ultimatum  with  a  conditional  declaration 


A  SUMMARY   OF   RESULTS  489 

of  war,  must  be  issued  before  hostilities  are  commenced, 
and  definite  notice  to  neutrals  of  the  state  of  war  is 
required ;  militia  corps  and  volunteers,  to  be  considered 
"belligerents,"  must  bear  arms  openly,  as  well  as  re- 
spect the  laws  and  customs  of  war;  prisoners  of  war 
may  be  confined  only  as  an  indispensable  measure  of 
safety,  and  only  for  the  duration  of  the  circumstances 
which  necessitate  their  confinement;  bureaus  of  in 
formation  were  charged  with  the  duty  of  ascertaining  ad- 
ditional details  concerning  prisoners,  and  of  forwarding 
their  record  to  their  government  after  the  conclusion  of 
peace;  officers  were  exempted  from  the  rule  permitting 
belligerents  to  employ  their  prisoners  of  war  as  laborers, 
and  it  was  agreed  that  their  captors  should  pay  them  a 
salary  equal  to  that  paid  to  officers  of  the  same  rank  in 
the  enemy's  army ;  the  repudiation,  by  belligerent  govern- 
ments, of  the  private  claims,  or  "rights  and  actions  at 
law,"  of  the  subjects  of  hostile  powers  was  prohibited; 
belligerents  were  forbidden  to  compel  the  subjects  of  the 
enemy  to  take  part  in  the  operations  of  the  war  directed 
against  their  country,  even  when  they  have  been  in  the 
belligerent's  service  before  the  war  commenced;  a  per- 
manent prohibition  was  placed  on  the  bombardment  of 
undefended  towns  and  buildings,  by  artillery,  by  the  launch- 
ing of  projectiles  or  explosives  from  balloons,  or  by  any 
means  whatever;  in  the  bombardment  of  defended  towns, 
historical  monuments  were  added  to  the  list  of  buildings 
to  be  protected;  a  belligerent  was  forbidden  to  compel 
the  population  of  an  occupied  territory  to  give  information 
concerning  the  army  of  the  other  belligerent  or  its  means 
of  defense;  the  rights  of  private  property  in  occupied 
territory   were  strengthened  by  the    rules    that    receipts 


490  THE  TWO   HAGUE   CONFERENCES 

given  for  contributions  in  kind  shall  be  redeemed  for 
money  as  soon  as  possible,  and  that  all  means,  on  land 
and  water  and  in  the  air,  of  transmitting  news  and  trans- 
porting persons  or  things,  except  those  regulated  by 
maritime  law,  shall  not  be  confiscated  by  the  invader,  but 
only  used  for  his  military  necessities  and  be  restored  and 
compensated  for  on  the  conclusion  of  peace. 

The  importance  of  the  above  rules  lies  in  the  fact  that 
they  are  another  step  in  the  humanizing  of  war  and  in 
the  protection  of  peace  and  prosperity  from  its  ravages. 

IV.     ARBITRATION 

As  the  first  conference  is  historically  important  chiefly 
for  the  progress  which  it  made  in  the  advancement  of 
the  principle  and  practice  of  voluntary  international  arbi- 
tration, so  the  chief  historical  importance  of  the  second 
conference  lies  in  its  advancement  of  the  principle  and 
practice  of  both  obligatory  and  voluntary  international 
arbitration.  The  latter's  work  in  furtherance  of  the 
principle  of  obligatory  arbitration  has  already  been  es- 
timated under  the  head  of  "attempts";1  its  promotion 
of  the  practice  of  obligatory  arbitration  will  be  summarized 
in  connection  with  the  forcible  collection  of  debts  and 
the  International  Prize  Court;  its  achievements  in  the 
field  of  voluntary  arbitration  are  associated  with  its  sys- 
tem of  arbitral  procedure  for  the  Permanent  Court  of 
Arbitration  and  its  Court  of  Arbitral  Justice. 

Popular  expectations  in  regard  to  the  first  conference 
ran  highest  in  the  direction  of  the  limitation  of  armaments; 
these  expectations  were  disappointed,  but  the  conference 

1  See  pages  461-463. 


A   SUMMARY   OF   RESULTS 


491 


gave  to  the  world  unhoped  for,  almost  undreamed  of, 
achievements  in  the  realm  of  arbitration.  The  second 
conference  was  anticipated  in  popular  interest  chiefly 
because  of  what  was  hoped  it  would  accomplish  in  the 
direction  of  arbitration;  the  highest  of  these  hopes  were 
disappointed,  but  the  field  of  future  harvests  was  sur- 
veyed and  plowed  and  planted,  while  the  harvest  actually 
gleaned  is  sufficiently  good  and  bountiful  to  encourage 
and  rejoice  greatly  all  true  patient  lovers  of  international 
.  peace. 

1.    The  Forcible  Collection  of  Debts 

The  agreement  to  refrain  from  the  use  of  armed  force 
for  the  collection  of  contractual  debts,  unless  arbitration 
of  them  should  fail,  was  one  of  the  most  important  achieve- 
ments of  the  second  conference,  and  one  of  the  greatest 
triumphs  in  the  history  of  diplomacy. 

It  will  remove  one  cause  of  uncertainty,  anxiety,  and 
restriction  from  the  paths  of  neutral  commerce;  it  will 
promote  financial  prudence  and  financial  honesty  on  the 
part  of  governments;  it  will  protect  the  limited  resources 
of  undeveloped  countries  from  the  extravagant  demands 
of  unscrupulous  foreign  "promoters";  it  will  relieve 
state  departments  of  the  vast  labor  and  expense  of  collect- 
ing doubtful  claims;  it  will  relieve  the  United  States  of 
the  burden  of  defending  financial  dishonesty,  and  of 
unduly  interfering  with  the  domestic  affairs  of  other 
nations,  in  its  determination  to  enforce  the  Monroe 
Doctrine ;  it  will  be  one  more  strong  reason  for  the  limi- 
tation of  armaments,  especially  on  the  part  of  the  Latin 
American  states;    it  will  do  away  with  a  prolific  source 


492  THE   TWO    HAGUE   CONFERENCES 

of  threats,  "peaceful  blockades,"  and  warfare  between 
nations;  and  it  is  a  long  step  towards  general  obligatory 
arbitration. 

International  honesty,  justice,  industry,  and  peace  have 
all  received  a  powerful  impulse  from  the  adoption  of  this 
"Porter  Proposition,"  which  of  itself  alone  has  made  the 
second  Peace  Conference  well  worth  the  time,  labor,  and 
expense  which  it  involved. 

2.    Arbitral  Procedure 

The  few  rules  of  1899  for  the  procedure  of  international 
commissions  of  inquiry  were  so  developed  and  increased 
in  1907  that  a  complete  code  of  ready-made  rules  is 
available  at  all  times  for  the  guidance  of  those  commissions, 
no  matter  how  suddenly  they  may  be  called  upon  to  operate, 
or  how  important  and  delicate  the  questions  which  they 
may  be  asked  to  investigate.  These  rules *  are  based  upon 
experience  in  the  case  of  the  Hull  Fishermen,  or  the 
Dogger  Bank,  and  are  confidently  expected  to  facilitate 
a  resort  to  commissions  of  inquiry  as  a  means  of  avoiding 
warfare. 

The  code  of  arbitral  procedure  adopted  in  1899  for  the 
Permanent  Court  of  Arbitration  was  so  amended  and 
developed  in  1907  that  the  chances  of  uncertainty  and 
delay  in  the  arbitration  of  international  differences  were 
lessened,  the  expenses  of  the  procedure  were  diminished, 
and  a  further  advance  was  made  in  the  direction  of  raising 
international  arbitration  from  the  plane  of  diplomacy  to 
that  of  genuine  judicature.  The  measures  adopted  for 
facilitating  an  agreement  upon  the  compromise,  that 
sine  qua  non  of  arbitration,   and  the  five  articles  pro- 

1  See  pages  291-295. 


A  SUMMARY   OF   RESULTS  4g~ 

viding  for  a  "summary  pro'ccdurc  of  arbitration,"  *  were 
designed  to  make  more  easy  and  frequent  a  resort  to 
the  Permanent  Court  for  the  settlement  of  international 
difficulties. 

3.   The  Court  of  Arbitral  Justice 

The  action  of  the  conference  in  regard  to  the  Court 
of  Arbitral  Justice,  which  was  proposed  and  championed 
by  the  United  States  delegation,  was  considered  by  many 
its  most  conspicuous  failure,  by  some  its  most  bitter  dis- 
appointment, and  by  a  few  its  most  promising  achieve- 
ment. The  verdict  of  future  events  must  be  awaited  for 
assured  condemnation  or  vindication  of  that  action; 
but  a  few  reasons  may  be  suggested  here  for  placing  it, 
and  for  placing  it  high,  upon  the  list  of  the  conference's 
achievements. 

The  potency  of  great  ideas  in  human  history  needs 
not  to  be  argued;  nor  does  the  statement  that  the  idea 
of  establishing  a  genuine  court  as  the  arbiter  of  inter- 
national differences  is  a  great,  a  baJm-brechende,  idea. 
Now  this  idea,  although  abandoned  as  impracticable  by 
the  first  conference,  was  introduced  in  the  second  con- 
ference only  eight  years  later,  explained,  attacked,  de- 
fended, and  almost  unanimously  accepted  as  both  desirable 
and  practicable.  Some  of  the  ablest  of  international 
jurists  collaborated  in  the  task  of  advocating  that  idea 
and  giving  to  it  form  and  substance.  The  concrete  results 
of  their  labor  were  adopted  by  the  conference  and  are 
published,  not  as  a  vermiform  appendix,  but  as  an  essen- 
tial annex  to  the  Final  Act. 

1  See  pages  402-409. 


494  THE   TWO    HAGUE   CONFERENCES 

Not  only  will  the  idea  of  such  a  court  henceforth  stand 
behind  the  wrong  of  warfare,  but  it  will  inevitably  rule 
the  future.  The  court  itself,  fashioned  and  wrought  out 
in  all  but  one  of  its  details,  needs  only  an  agreement  as 
to  the  appointment  of  its  judges;  and  when  this  breath 
of  life  is  breathed  into  it  by  any  number  of  the  nations, 
it  will  at  once  spring  into  beneficent  activity.  Its  operation 
does  not  require  unanimity  among  the  nations,  as  did 
so  many  other  features  of  the  Final  Act  of  The  Hague; 
nor  does  it  require  even  a  two-thirds  acceptance,  as  did 
the  Constitution  of  the  United  States;  but  the  moment 
when  two  or  more  powers  agree  upon  the  appointment 
of  its  judges,  it  will  open  its  doors  for  the  pacification  of 
disputes.  Even  though  constituted  by  only  two  powers,  it 
will  be  known  as  the  Court  of  Arbitral  Justice  at  The 
Hague,  and,  like  a  city  set  upon  a  hill,  it  will  eventually 
draw  to  it  all  nations  seeking  to  escape  the  evils  of  warfare. 

It  was  greatly  to  be  desired,  of  course,  and  it  is  still 
greatly  to  be  desired,  that  its  operation  should  come 
as  the  result  of  unanimous  agreement.  But  even  from 
this  point  of  view  it  should  be  noted  that  the  conference 
voted  unanimously  the  recommendation  that  the  govern- 
ments should  adopt,  not  some  court,  but  this  particular 
Court  of  Arbitral  Justice,  and  put  it  in  operation 
as  soon  as  they  could  agree  upon  the  choice  of  its 
judges. 

To  inhabitants  of  the  Western  World,  also,  the  hope  of 
a  court  based  upon  unanimous  support  is  strengthened  by 
the  recent  establishment  of  a  court  of  arbitral  justice  by  the 
republics  of  Central  America.  This  hope  of  our  Western 
World  has  been  well  expressed  by  President  Roosevelt 
who  said  of  the  method  of  choosing  the  judges:     "This 


A   SUMMARY.  OF   RESULTS  495 

remaining  unsettled  question  is  plainly  one  which  time  and 
good  temper  will  solve" ; x  by  Ambassador.  Choate  and  Sec- 
retary Hale,  who  said,  in  their  report  to  the  United  States 
government,  in  regard  to  the  same  question  :  "  A  little  time, 
a  little  patience,  and  the  great  work  is  accomplished"  ;  and 
by  Dr.  Scott,  who  writes:  "I  believe  you  will  search  in 
vain  for  any  work  of  a  more  far-reaching  nature  accom- 
plished within  the  past  centuries.  The  dream  of  Henry 
IV,  the  hope  of  William  Penn,  both  of  whom  prepared 
projects  for  a  court  of  nations,  seem,  if  not  wholly  to  have 
been  realized,  within  the  very  grasp  of  our  generation."  2 

4.    The  International  Prize  Court 

The  establishment  of  an  international  high  court  of 
justice  functioning  as  a  court  of  appeal  from  national 
courts  in  cases  of  merchant  ships  captured  in  naval  war, 
was,  for  several  reasons,  one  of  the  second  conference's 
most  important  achievements.  It  is  the  first  truly  inter- 
national court  established  in  the  history  of  the  world. 
Its  decisions  will  be  a  fruitful  source  of  maritime  law. 
It  will  remove  the  capture  of  merchant  ships  still  farther 
from  the  plane  of  piracy,  by  permitting  the  decision  of 
a  national  prize  court  to  be  supplemented  by  that  of  an 
international  one.  It  will  modify  the  presumably  partial 
decisions  of  national  courts  by  an  appeal  to  the  probably 
less  partial  decisions  of  an  international  one,  and  will 
thereby  emphasize  forcefully  the  principle  in  international, 
as  in  national  law,  that  a  suitor  shall  not  be  judge  in  his 
own  cause.  It  will  remove  a  fertile  cause  of  disputes 
between  the  belligerents  themselves,  and  between  them 

1  The  President's  message  to  the  Congress,  December,  1907. 

2  James  Brown  Scott,  "The  Work  of  the  Second  Hague  Conference,"  a 
pamphlet  published  by  the  Association  for  International  Conciliation. 


496  THE   TWO   HAGUE   CONFERENCES 

and  neutral  nations,  and  will  thereby  lessen  the  bitterness 
of  wars  once  begun  and  prevent  the  outbreak  of  others. 
The  unanimous  adoption  (with  the  exception  of  Brazil's 
vote)  of  its  method  of  selecting  judges,  will  pave  the  way 
for  the  solution  of  the  same  question  in  regard  to  the  Court 
of  Arbitral  Justice.  And,  by  supplying  in  time  of  war 
a  regular  adjudication  of  one  very  important  and  delicate 
class  of  international  differences,  it  will  serve  as  an  in- 
ductive argument  and  give  a  strong  impulse  to  the  estab- 
lishment of  the  Court  of  Arbitral  Justice  for  the  adjudi- 
cation of  all  classes  of  international  differences  in  time 
of  peace.1 

C.   INDIRECT   RESULTS 

The  indirect  results  of  great  events  in  the  world's  history 
are  often  of  greater,  because  more  lasting  and  far-reaching, 
importance  than  are  their  direct  and  measurable  ones. 
An  eminent  historian,  the  Duke  de  Broglie,  has  said: 
"We  live  in  a  time  when  we  must  take  as  much  and  more 
account  of  the  moral  effect  of  a  great  measure  than  of  its 
material  and  immediate  results."  This  would  seem  to 
be  especially  true  of  conferences  designed  to  promote 
the  world's  peace.  Just  as  the  hands  on  the  clock  of 
time  cannot  be  turned  permanently  backward,  so  nations 
cannot  be  permanently  checked  in  their  advance  towards 
visions  which  their  eyes  have  once  clearly  seen  and  their 
minds  have  begun  to  appreciate. 

1  Although  the  International  Prize  Court  was  based  on  the  compromises 
proposed  by  Mr.  Choate,  and  the  convention  establishing  it  was  signed  by 
the  United  States  delegation,  the  United  States  Senate  has  not  yet  ratified  it. 
The  Senate  committee's  refusal  to  report  it  at  the  last  session  was  due  to  the 
constitutional  objection  that  no  foreign  jurisdiction  can  be  established  or 
recognized  by  the  United  States  Government  ;  but  it  is  entirely  probable 
that  this  objection  will  be  found  to  be  a  mistaken  one,  and  that  the  convention 
will  be  ratified  at  the  Senate's  next  session. 


A   SUMMARY   OF    RESULTS  497 

All  the  indirect  results  of  the  two  Peace  Conferences, 
all  the  visions  which  they  have  summoned  above  the 
international  horizon,  are  too  numerous  to  be  mentioned 
here,  and  they  can  be  fully  appreciated  only  with  the 
progress  of  the  nations  towards  them.  But  there  are  two 
indirect  results  of  these  conferences  which,  because  of 
their  prime  and  immediate  importance,  should  be  men- 
tioned briefly  here.  These  are,  first,  their  promotion  of 
what  may  be  called  in  Tennyson's  phrase,  "the  federation 
of  the  world";  and,  second,  their  preparation  for  a  third 
Peace  Conference  at  The  Hague. 

I.     THE     FEDERATION   OF   THE    WORLD 

The  above  phrase  has  been  selected  as  the  title  of  this 
section,  rather  than  its  companion  one,  which  is  quoted 
with  equal  frequency,  "the  Parliament  of  Man."  Of 
course,  the  meeting  and  work  of  the  two  Peace  Con- 
ferences constitute  in  no  true  modern  political  sense  a 
parliament.  The  universality  of  both  phrases,  it  is  true, 
was  closely  approximated  by  them.  The  one  hundred 
members  of  the  first  conference  represented  twenty-six 
of  the  world's  fifty-nine  independent  powers,  and  three- 
fourths  of  its  population  and  resources;  the  two  hundred 
and  fifty-six  members  of  the  second  conference  represented 
forty-four  of  the  world's  fifty-seven  powers  claiming 
sovereignty,  and  practically  all  of  its  population  and  re- 
sources. But  although  the  conferences  may  properly 
be  called  world  assemblies,  they  lacked  some  essential 
features  of  a  world  parliament  or  legislature. 

On  the  other  hand,  they  possessed  some  striking  features 
which  may  justify  the  appellation  of  the  federation  of  the 


498  THE   TWO   HAGUE   CONFERENCES 

world.  The  legislative,  judicial,  and  executive  organs 
of  this  federation  are  still  rudimentary,  of  course,  but  they 
have  come  to  life,  thanks  to  the  Peace  Conferences,  and 
give  promise  of  larger  growth.  The  twenty  conventions 
and  declarations  adopted  by  the  two  conferences  form^ 
a  code  of  international  law  which  is,  in  the  aggregate,  of 
large  volume  and  great  importance.  The  judicial  organs 
of  this  federation  are  the  Permanent  Court  of  Arbitration, 
the  Court  of  Arbitral  Justice,  and  the  International  Prize 
Court;  and,  although  the  first  of  these  is  for  purely 
voluntary  resort  and  the  second  has  not  yet  been  put  in 
operation,  they  together  form  a  very  respectable  judiciary 
for  the  world  federation,  a  much  more  respectable  one 
than  various  other  federations  have  had,  and  one  that  is 
strengthened  by  an  admirable  code  of  judicial  procedure 
and  by  the  obligatory  submission  to  it  of  at  least  two  im- 
portant classes  of  cases,  the  collection  of  contractual 
debts  and  the  adjudication  of  maritime  prizes. 

The  chief  defect  of  international  law  in  the  past  has 
generally  been  considered  to  be  its  lack  of  an  efficient 
executive.  This  defect  has  been  largely  supplied  by  the 
two  Peace  Conferences.  The  conventions  are  operative 
only  upon  those  powers  which  have  accepted  them,  but 
they  can  be  discontinued  only  after  formal  notice  to  the 
other  powers  and  at  the  end  of  one  year  after  the  date 
of  such  notice.  The  sanction  for  the  faithful  observance 
of  the  conventions,  meanwhile,  rests  not  only  upon  the 
good  faith  and  public  opinion  of  each  nation,  but  upon 
an  international  public  opinion  which  has  been  so  largely 
developed  by  the  conferences  that  it  is  almost  a  creation 
of  their  own.  They  have  greatly  strengthened  this  inter- 
national  public  opinion  by  the  personal  intercourse  of 


A   SUMMARY   OF   RESULTS  499 

the  leaders  of  thought  throughout  the  world;  and  they 
have  greatly  enlightened  it  by  holding  up  in  the  clear, 
many-sided  light  of  a  world  discussion  the  ideals  of  each 
nation,  thus  making  each  nation  more  fully  conscious 
than  ever  before  of  its  own  ideals  of  international  conduct 
and  of  those  of  all  other  nations.  The  potency  of  this 
strengthened  and  enlightened  international  public  opinion 
has  been  illustrated  many  times  in  the  pages  of  this  book. 
Its  force  was  acknowledged  by  such  dissimilar  men  as 
Count  Miinster,  of  Germany,  in  the  first  conference,  and 
M.  Beernaert,  of  Belgium,  in  the  second;  it  has  been 
bowed  to  by  many  powers,  ranging  from  the  British  Em- 
pire down  to  Venezuela. 

This  federation  of  the  world  is  very  far  indeed  from 
the  ideal  of  a  world  empire,  which  was  realized  by  Caesar 
and  attempted  by  Napoleon.  It  is  also  very  far  from  the 
particularist  ideal  of  absolute  and  isolated  autonomy  on 
the  part  of  each  nation,  which  has  been  found  to  be, 
both  in  the  Orient  and  the  Occident,  as  undesirable  as 
it  is  impossible.  The  golden  mean  between  these  two 
extremes  which  this  federation  of  the  world  has  begun 
to  represent,  is  well  expressed  by  Professor  de  Martens, 
of  Russia,  in  his  closing  address  to  the  IV  Commission  of 
the  second  conference. 

"If  we  deserve  any  credit,"  he  said,  and  his  statement  was  received 
with  unanimous  applause,  "for  the  elaboration  of  approved  proj- 
ects, it  is  by  grace  only  of  the  conviction  which  inspires  all  of  us 
without  exception  that  the  days  of  an  isolated  life  and  of  separation 
between  the  nations  have  passed  away  for  ever,  that  nations  must 
make  mutual  concessions  to  each  other,  and  that  only  on  this  essential 
condition  can  the  organization  of  the  new  international  and  common 
life  become  a  great  blessing  to  all.  This,  gentlemen,  is  the  mistress 
idea  of  all  our  labors,  and  this  is  the  keystone  of  the  edifice  of  law 


500  THE  TWO   HAGUE   CONFERENCES 

and  justice  whose  corner  stone  we  have  recently  laid.  This  idea 
will  become  in  the  future  the  solid  guarantee  of  international  peace, 
and,  by  leaving  it  as  a  heritage  to  our  successors,  we  shall  guarantee 
the  success  of  their  efforts  towards  the  ideal  which  we  have  pursued." 

The  "edifice  of  law  and  justice,"  to  which  Professor 
de  Martens  referred,  was  the  Peace  Palace  in  The  Hague, 
which  Mr.  Andrew  Carnegie,  of  the  United  States,  had 
presented,  and  whose  corner-stone  the  second  conference 
had  laid.  This  palace,  the  seat  of  the  international 
courts  established  by  the  conferences,  is  a  tangible  and 
beautiful  expression  of  the  ideal  of  the  federation  of  the 
world,  which  they  have  done  so  much  to  realize.  The 
chief  public  ceremony  of  the  first  conference,  too,  the 
honor  accorded  by  the  United  States  delegation  to  the 
memory  of  Hugo  Grotius  at  Delft,  was  the  exaltation 
of  that  international  law  and  justice  which  must  ever 
be  the  motive  power  and  guidance  of  the  federation  of 
the  world,  and  which  the  two  Peace  Conferences  have 
done  so  much  to  develop. 

II.  THE  THIRD  PEACE  CONFERENCE 

The  wholly  unexpected  manner  in  which  the  first 
conference  was  called  into  existence,  and  the  large  element 
of  chance  which  entered  into  the  summoning  of  the  second, 
led  the  Interparliamentary  Union  and  other  influential 
organizations  to  demand  that  some  regular  means  should 
be  adopted  by  the  second  conference  for  the  periodical 
assembly  of  its  successors. 

Secretary  Root  instructed  the  United  States  delegation 
of  1907  to  "favor  the  adoption  of  a  resolution  by 
the   conference    providing   for   the    holding    of     further 


A  SUMMARY   OF   RESULTS 


50T 


conferences  within  fixed  periods  and  arranging  the 
machinery  by  which  such  conferences  may  be  called  and 
the  terms  of  the  programme  may  be  arranged,  without 
awaiting  any  new  and  specific  initiative  on  the  part  of 
the  powers  or  any  one  of  them."  "Encouragement  for 
such  a  course,"  Mr.  Root  added,  "  is  to  be  found  in  the 
successful  working  of  a  similar  arrangement  for  inter- 
national conferences  of  the  American  Republics." 

The  United  States  delegation  introduced  a  resolution 
in  accordance  with  these  instructions  and  suggested,  as 
the  date  of  the  meeting  of  the  third  conference,  the  month 
of  June,  1914.  Although  the  great  desirability  of  the 
object  of  this  resolution  was  freely  admitted,  the  con- 
ference seemed  to  fear  that  it  implied,  in  some  way,  a 
wrong  to  the  Czar  of  Russia,  since  he  had  taken  the 
initiative  in  calling  the  first  conference  and  in  arranging 
its  programme  of  work,  and  had  played  a  large  part  in 
the  same  respects  in  relation  to  the  second  conference. 
When  the  resolution  was  presented  in  the  sixth  plenary 
session,  delegation  after  delegation  arose  and  expressed 
its  gratitude  to  the  Czar,  as  the  initiator  of  both  confer- 
ences, and  to  the  Queen  of  the  Netherlands,  as  their 
hostess.  The  delegation  of  the  United  States  participated 
in  this  expression  of  gratitude,  and  made  it  plain  that 
no  wrong  was  intended  to  the  Czar,  but  that  the  welfare 
of  humanity  should  not  be  subordinated  to  diplomatic 
ceremonialism.  The  resolution,  as  finally  adopted  as 
one  of  the  desires  (vceux)  of  the  Final  Act  was  as  follows : 

"The  conference  recommends  to  the  powers  the  reunion  of  a 
third  Peace  Conference,  which  shall  take  place  within  a  period 
analogous  to  that  which  has  elapsed  since  the  preceding  conference, 
at  a  date  to  be  fixed  by  common  agreement  among  the  powers,  and 


502      THE  TWO  HAGUE  CONFERENCES 

it  calls  their  attention  to  the  necessity  of  preparing  for  the  work 
of  this  third  conference  long  enough  in  advance  to  insure  the  pursuit 
of  its  deliberations  with  the  requisite  authority  and  rapidity.  To 
attain  this  end,  the  conference  considers  it  very  desirable  that  about 
two  years  before  the  probable  date  of  the  reunion  a  preparatory 
committee  be  charged  by  the  governments  with  the  duty  of  collect- 
ing the  various  propositions  to  be  submitted  to  the  conference,  of 
investigating  matters  susceptible  of  future  international  regulation, 
and  of  preparing  a  programme  to  be  approved  by  the  governments 
soon  enough  to  permit  its  serious  study  in  each  country.  This  com- 
mittee shall  also  be  charged  with  the  duty  of  proposing  a  mode  of 
organization  and  procedure  for  the  conference  itself." 

The  above  resolution  was  voted  unanimously  and, 
despite  its  somewhat  indefinite  phraseology,  it  means 
that  probably  in  the  summer  of  1915  a  third  International 
Peace  Conference  will  assemble  at  The  Hague,  which 
shall  in  a  similar  manner  provide  for  the  meeting  of  its 
successor.  It  means,  also,  that  about  two  years  before 
that  date  the  attention  of  every  nation  will  be  centered 
upon  some  great  problems  of  international  life,  and  that 
an  ardent  and  careful,  a  thorough  and  enthusiastic,  dis- 
cussion of  those  problems  and  the  best  means  of  solving 
them  will  roll  round  the  world,  gaining  enlightenment  and 
power  as  it  proceeds.  And  then,  when  the  third  con- 
ference assembles,  it  may  be  confidently  expected  that 
it  will  convert  some  of  the  attempts  of  the  second  confer- 
ence into  accomplished  facts,  even  as  the  attempts  of  the 
first  became  the  achievements  of  the  second. 

"The  immediate  results  of  such  a  conference,"  says 
our  great  American  Secretary  of  State,  Mr.  Elihu  Root,1 
"must  always  be  limited  to  a  small  part  of  the  field  which 

1  In  his  instructions  to  the  United  States  delegation  to  the  second  con- 
ference, and  his  letter  to  the  President  in  regard  to  its  work. 


A   SUMMARY    OF   RESULTS  503 

the  more  sanguine  have  hoped  to  see  covered;  but  each 
successive  conference  will  make  the  positions  reached  in 
the  preceding  conference  its  point  of  departure,  and  will 
bring  to  the  consideration  of  further  advances  towards 
international  agreement  opinions  affected  by  the  accept- 
ance and  application  of  the  previous  agreements.  Each 
conference  will  inevitably  make  further  progress  and, 
by  successive  steps,  results  may  be  accomplished  which 
have  formerly  appeared  impossible.  .  .  .  The  most  valu- 
able result  of  the  Conference  of  1899  was  tnat  li  made  the 
work  of  the  Conference  of  1907  possible.  The  achieve- 
ments of  the  two  conferences  justify  the  belief  that  the 
world  has  entered  upon  an  orderly  process  through  which, 
step  by  step,  in  successive  conferences,  each  taking  the 
work  of  its  predecessor  as  its  point  of  departure,  there 
may  be  continual  progress  toward  making  the  practice  of 
civilized  nations  conform  to  their  peaceful  professions." 
With  these  wise  words  of  warning  and  encouragement 
this  account  of  the  first  two  great  Peace  Conferences  may 
fitly  be  brought  to  an  end. 


INDEX 


After  the  name  of  each  delegate  mentioned,  the  year  of  his  membership  is  given  in 
parentheses,  and  a  reference  to  the  topics  in  the  discussion  of  which  he  participated. 
The  topics  are  not  listed  separately,  but  are  noted  under  "  Conference  of  1800  "  and 
"  Conference  of  1907." 


"Alabama,"   The,    123,   398. 

Alexander   IT,    214,    215. 

Amourel,  General  (1907),  neutral 
rights  and  duties  on  land,  201 ; 
belligerents,  221;  occupation  of 
hostile  territory,  257,  260;  open- 
ing of  hostilities,  263. 

Amsterdam,  18-19. 

Ardagh,  General  Sir  John  (1899), 
armaments,  62;  muskets,  179; 
bullets,  181,  182-185  '<  belliger- 
ents, 218. 

Argentina,  43,  74,  80,  138,  159, 
162,  311,  334,  339,  357,  362,  370, 

417.  445.  446,  45°.  457-  See 
also  Drago,  Larreta,  Saenz  Pcna. 

Asser,  T.  M.  C.  In  i8qq:  13; 
Geneva  Convention,  191;  good 
offices  and  mediation,  268; 
obligatory  arbitration,  328; 
Permanent  Court,  372,  374, 
380,  410-411;  arbitral  proced- 
ure, 392.  Inigoj:  34;  special 
mediation,  276-277;  Court  of 
Arbitral    Justice,    410-411. 

Austria,  34,  50,  71,  80,  86,  87,  91, 

.  93.  lo6>  "9,  *34>  135.  i38,  J39> 
144,  159,  177,  179,  182,  212,  230, 
236,  259,  260,  261,  264,  277,  290, 
323,  324,  325,  334,  338,  345,  346, 
349,  369,  370,  403,  404,  438,  444, 
463.  See  also  Gieslingen, 
Khuepach,  Lammasch,  Merey, 
Soltyk,  Welsersheimb. 

Austro-Prussian  War,   139. 


Barbosa,  Ruy  (1907),  15;  com- 
missions of  inquiry,  290;  obliga- 
tory arbitration,  319,  323;  forci- 
ble collection  of  debts,  361-362, 
366-367;  Court  of  Arbitral 
Justice,  420,  424,  425-426;  In- 
ternational Prize  Court,  429, 
436,    440-441,    444-446,    448. 

Bartholdt,  Richard,  4. 

Basily,  M.,  4. 

Bayard,  Secretary,  356. 

Beaufort,  W.  H.  de.  In  i8qq:  ad- 
dress at  opening  session,  36; 
and  at  closing  session,  39.  In 
igoy:  address  at  closing  session, 
43:  commissions  of  inquiry,  289. 

Beernaert,  Auguste.  InlSgg:  13, 
^t, ;  armaments,  54-55 ;  bullets, 
183;  neutral  rights  and  duties 
on  land,  211;  belligerents,  216- 
217,219;  prisoners  of  war,  224; 
spies,  238 ;  occupation  of  hostile 
territory,  243-248,  254;  Perma- 
nent Court,  418.  In  igoj:  15, 
33;  public  opinion,  25,  499;  ex- 
emption of  private  property, 
136-137;  laws  and  customs  of 
naval  war,  167;  bullets,  187- 
188,  189-190;  belligerents,  222; 
bombardment  on  land,  237; 
occupation  of  hostile  territory, 
260;  Court  of  Arbitral  Justice, 
418-419. 

Behring  Fisheries,  398,  405. 

Beldiman,   M.     In  l8gg:    arma- 


5°5 


506 


THE   TWO    HAGUE    CONFERENCES 


ments,  67 ;  Geneva  Convention, 
191 ;  commissions  of  inquiry, 
280,  283-284;  obligatory  arbi- 
tration, 302,  304,  306,  331,  339. 
In  igoy :  commissions  of  in- 
quiry, 290,  295-297;  Court  of 
Arbitral  Justice,  426. 
Belgium,  79-80,  103,  138,  139, 
144,  162,  175,  234,  265,  323,  325, 

334,  338,  339,  345,  348,  370,  384, 
408..  422,  425,  444,  447.  See 
also  Beernaert,  Descamps,  Heu- 
vel. 

Berlin,  Act  of,  1885,  268;  Labor 
Conference,  377. 

Bieberstein,  Baron  Marschall  von 
(1907),  15;  submarine  mines, 
99-100;  exemption  of  private 
property,  135;  neutral  rights 
and  duties  on  land,  207,  209; 
opening  of  hostilities,  263;  com- 
missions of  inquiry,  290 ;  obliga- 
tory arbitration,  312-314,  333- 

335,  337-342,  346,  455-456; 
arbitral  procedure,  408;  Court 
of  Arbitral  Justice,  411-412, 
417;  International  Prize  Court, 
427,  428-429,  429-430,  441. 

Bildt,  Baron  de  (1899),  arma- 
ments, 63-64;  obligatory  arbi- 
tration, 303;    Permanent  Court, 

381,  384- 

Bille,  M.  de  (1899),  rams,  92;  oc- 
cupation of  hostile  territory,  255. 

Bismarck,  Prince,  52,   53. 

Blaine,  James  G.,  356. 

Bolivia,   49,    138,    363. 

Bonfils,  356. 

Borel,  Colonel  (1907),  occupation 
of  hostile  territory,  257;  Inter- 
national Prize  Court,  431. 

Bourgeois,  Leon.  In  iSgg:  13, 
33;  armaments,  62,  64—65,  66; 
occupation  of  hostile  territory, 
251 ;  good  offices  and  mediation, 
268;  commissions  of  inquiry, 
280,  283  ;  obligatory  arbitration, 
305,308-310;  Permanent  Court 
of  Arbitration,  372-373,  380. 
In  igoj :    15,   33;    armaments, 


74 ;  commissions  of  inquiry, 
292 ;  obligatory  arbitration,  311— 
3I2>  339,  343-344,  347;  Court 
of  Arbitral   Justice,    420-421. 

Brandstrom,  Captain  (1899),  ar- 
maments, 62. 

Brazil,  11,  95,  105,  134,  i35-I36» 
138. 139,  I5I,  159.  l62>  263,  3I9, 
334,  37°.  4o8,  419,  425,  447,  459- 
460.     See  also  Barbosa. 

Brewer,  Justice,  391. 

British  Delegation  in  1899,  war- 
fare in  the  air,  79 ;  asphyxiating 
gases,  87,  89,  90,  464;  torpedo 
boats,  91;  rams,  92;  naval 
bombardment,  100;  Red  Cross 
refugees,  123,  124;  exemption 
of  private  property,  127,  129, 
133;  muskets,  179;  bullets,  182, 
184,  185,  187,  464,  468  [Geneva 
Convention,  1906,  198,  199]; 
belligerents,  219-220;  obliga- 
tory arbitration,  330;  forcible 
collection  of  debts,  349,  350; 
Permanent  Court,  385.  See 
also  Ardagh,  Fisher,  Paunce- 
fote. 

British  Delegation  in  1907,  arma- 
ments, 49,  70-75 ;  programme, 
49,  50-51;  warfare  in  the  air, 
80;  submarine  mines,  94,  96, 
98-99,  481-482 ;  naval  bom- 
bardment, 102 ;  merchant  ships 
transformed  into  cruisers.  105, 
107 ;  hospital  ships,  118 ;  exemp- 
tion of  private  property,  135, 
138,  139 ;  delay  of  favor  to  mer- 
chant ships,  141,  142,  143;  cap- 
tured merchant  crews,  144;  bel- 
ligerents in  neutral  waters,  152- 
157;  blockade,  159,  459;  con- 
traband, 160-162,  459-460; 
neutral  prizes,  163;  bullets  187, 
188;  asphyxiating  gases,  188; 
neutral  rights  and  duties  on 
land,  204,  209 ;  prisoners  of  war, 
230;  occupation  of  hostile  terri- 
tory, 259,  261 ;  special  media- 
tion, 277;  commissions  of  in- 
quiry, 288,  292,  296;  obligatory 


INDEX 


507 


arbitration,  331,  334,  345;  forci- 
ble collection  of  debts,  350,  351, 
370;  arbitral  procedure,  404; 
Court  of  Arbitral  Justice,  421; 
International  Prize  Court,  42, 
427,  438,  442.  See  also  Crowe, 
Fry,  Howard,  Ottley,  Reay, 
Sat  w. 

Broglie,  Due  de,  496. 

Brussels,  Conference  and  Declara- 
tion of,  1874,  213-218,  225- 
228,  233,  238-242,  244-247,  254- 
255.  467. 

Bryce,  Dr.  James,  341. 

Bulgaria,  11,  14,  93,  138,  172,  174, 
175,  259,  282  345,  368,  419,  420. 
See  also  Standoff. 

Btilow,  Count  and  Chancellor  von, 

5°,  7r>  387- 
Bustamente,     M.     (1907),     Inter- 
national  Prize   Court,   431. 

Caesar,  Julius,  499. 

California  Pious  Funds,  405. 

Candamo,  M.  (1907),  obligatory 
arbitration,  320-321,323;  for- 
cible collection  of  debts,  359- 
360. 

Carnegie,  Andrew,  19,  41,411,  412, 
500. 

Castro,  M.  (1907),  obligatory  ar- 
bitration, 317,  318;  forcible  col- 
lection of  debts,  359. 

Chili,  74,  80,  97,  103,  138,  162,  222, 
311,  322,  323,  325,  425,  445,  447, 
450,  457,  458.  See  also  Gana, 
Matte. 

China,  80,  94,  102,  108,  138,  143, 

175,    264,    339,    403,    425,    464- 

See  also  Foster. 
Chino-Japanese  War,    120. 
Choate,    Joseph    H.    (1907),    15; 

exemption  of  private   property, 

134-135.  I37-138>  M0-141,  458; 
exemption  of  certain  ships,  145 ; 
mediation,  275;  obligatory  ar- 
bitration, 3i4-3T7>  322-323,  339, 
341-342,  346,  348,  455;  arbitral 
procedure,  408;  Court  of  Arbi-  . 
tral  Justice,  412-415,  418,  423, 


424,  426,  495 ;  International 
Prize  Court,  430-437,  496. 

Coanda,  Colonel  (1899),  arma- 
ments, 62. 

Cobden,  Richard,  134. 

Collins,  Lord  Justice,  391. 

Columbia,  80,  108,  138,  360,  363, 
370.     See  also  Perez  Triana. 

Conference  of  1899,  forerunners, 
1 ;  origin,  1-3 ;  place  of  meeting, 
6-8;  members,  10-13;  leaders, 
13;  festivities  and  ceremonies, 
17-18;  publicity  and  public 
opinion,  21-24;  organization, 
28;  commissions  and  sub-com- 
missions, 28-30;  method  of 
work,  29-30;  officers,  30-31; 
meetings,  35-40 ;  programme, 
45-47;  results,  449-456,  463- 
476,  496-500;  armaments,  35, 
46,  52-69,  449-450;  warfare  in 
the  air,  76-79,  465 ;  warfare  on 
the  sea :  465-466 ;  new  arms  and 
methods,  83-85 ;  marine  can- 
non, 85-86,  451 ;  explosives  and 
asphyxiating  gases,  87-90,  466; 
torpedo  boats  and  rams,  91-92, 
451;  bombardment,  100,  234, 
452-453;  Geneva  Convention, 
109-124,  466-467  (hospital  ships, 
109-116;  Red  Cross  officials 
and  refugees,  118-124);  ex- 
emption of  private  property, 
126-133,  451-452;  neutral 
rights  and  duties,  146-147,  452; 
laws  and  customs,  166,  452- 
453;  warfare  on  land :  467;  new 
arms  and  methods,  169-170, 
453  (explosives,  1 70-1 71,  453  J 
field  guns,  1 71-172,  453;  mus- 
kets, 1 72-181,  453;  bullets,  181- 
187,  468) ;  Geneva  Convention, 
190-193,  [Revision  of  1906,  193- 
199  J,  468-469 ;  neutral  rights 
and  duties,  199-201,  453 ;  laws 
and  customs,  35,  213-215  (bel- 
ligerents, 215-220,  469;  prison- 
ers of  war,  222-228,  469;  means 
of  injuring  the  enemy,  232-234, 
469;    bombardment,   234,  469- 


5o8 


THE   TWO    HAGUE    CONFERENCES 


470;  spies,  238-239,  470; 
of  truce,  239-240,  470;  armis- 
tice, 241-242,  470;  capitula- 
tions, 242-243,  470;  occupation 
of  hostile  territory,  243-256, 
470);  arbitration:  36,  46,  454— 
456,  470-476;  good  offices  and 
mediation,  267-275,  472-473; 
commissions  of  inquiry,  277- 
288,  474;  obligatory,  297-311, 
454-456;  specific  cases,  326- 
331 ;  forcible  collection  of  debts, 
349-350,  456;  Permanent  Court, 

23.  *99,  3°4-3o6>  33°,  33x..369. 
370-387,  474-476;  International 
Bureau,  379-381,  385-386;  Per- 
manent Administrative  Council, 
381-382;  arbitral  procedure, 
390-402. 
Conference  of  1907,  origin,  3-5; 
place  of  meeting,  8-9 ;  members, 
13-16;  leaders,  15-16;  festivi- 
ties and  ceremonies,  18-20; 
publicity  and  public  opinion, 
24-27;  organization,  31-32; 
commissions  and  sub-commis- 
sions, 32-33;  method  of  work, 
33;  officers,  33-34;  meetings, 
40-44;  programme,  47-51;  re- 
sults, 449,  456-464,  477-503; 
Third  Peace  Conference,  500— 
503;  armaments,  42,  49,  69-75, 
315,  456-457;  warfare  in  the 
air,  79-82,  236-237,  478;  war- 
fare on  the  sea:  479-480;  new 
arms  and  methods,  93 ;  sub- 
marine mines,  93-100,  480-482 ; 
bombardment,  100-104,  482- 
483;  merchant  ships  trans- 
formed into  cruisers,  104-108, 
483-484 ;  Geneva  Convention, 
116-118,  124-126  (hospital 
ships,  116-118;  Red  Cross  offi- 
cials and  refugees,  124-126); 
exemption  of  private  property, 
133-141,  458-459;  delay  of 
favor  to  merchant  ships,  141- 
144,  484;  captured  merchant 
crews,  144,  485;  exemption  of 
certain  ships,  144-146,  485 ;  ex- 


emption of  mail,  146,  485 ;  neu- 
tral rights  and  duties,  148-166, 
459-460,485-487  (belligerents  in 
neutral  waters,  149-157,  485- 
487;  blockade,  157-159,  459; 
contraband,  160-163,  459-460; 
destruction  of  neutral  prizes, 
163-166, 460) ;  laws  and  customs, 
166-168,  460—461 ;  warfare  on 
land :  487 ;  bullets,  187-190,  468; 
neutral  rights  and  duties,  201— 
213,  487-488;  laws  and  customs 
(belligerents,  220-222, 489 ;  pris- 
oners of  war,  228-232,  489; 
means  of  injuring  the  enemy, 
235-236,  489;  bombardment, 
236-237, 489 ;  capitulations,  243 ; 
occupation  of  hostile  territory, 
256-262,  489-490;  opening  of 
hostilities,  262-266,  488-489) ; 
arbitration:  43,  490-491;  good 
offices  and  mediation,  275-277; 
commissions  of  inquiry,  288- 
297,  461;  obligatory,  311-326, 
369,  461-463;  specific  cases, 
331-348;  forcible  collection  of 
debts,  350-370,  456,  491-492; 
Permanent  Court,  387-390;  ar- 
bitral procedure,  402-409,  492- 
493;  Court  of  Arbitral  Justice, 
410-426,  493-495,  496;  Inter- 
national Prize  Court,  427-448, 
480,  495-496. 

Corea,  14,  27,  199. 

Costa  Rica,  14. 

Crimean   War,  139. 

Crowe,  Mr.  (1907),  arbitral  pro- 
cedure, 406;  International  Prize 
Court,  442-443,  445. 

Crozier,  Captain  W.  (1899),  arma- 
ments, 62,  67-68;  warfare  in 
the  air,  77-79,  82,  465 ;  exemp- 
tion of  private  property,  166, 
233;  explosives,  170,  180;  bul- 
lets, 185-186,  190;  belligerents, 
220;  occupation  of  hostile  terri- 
tory, 247. 

Cuba,  138,  222,  230,  232,  237 
263-264,  266.  See  also  Busta- 
mente. 


INDEX 


509 


Davis,  General  G.  B.  (1007),  bul- 
lets, 187,  189;  neutral  rights 
and  duties  on  land,  207-208; 
opening  of  hostilities,   265. 

"Deerhound,"    The,    123. 

De  Floecker,  356. 

Denmark,  49,  87,  91,  93,  138,  171, 
175.  255>  261,  311,  3*9,  339.  422, 
425,  447.     See  also  Bilk. 

Descamps,  Chevalier  (1899),  13; 
occupation  of  hostile  territory, 
248-249,  251;  good  offices  and 
mediation,  267 ;  special  me- 
diation, 274;  commissions  of 
inquiry,  282;  obligatory  arbi- 
tration, 300-301,  303,  328; 
Permanent      Court,       37i-375> 

376>  476- 

Despagnet,  356. 

D'Estournelles  de  Constant.  In 
l8gg:  13;  address  at  closing 
session,  39 ;  warfare  in  the  air, 
76;  commissions  of  inquiry, 
279-280,  287 ;  obligatory  arbi- 
tration, 305,  306;  Permanent 
Court,  372,  471.  In  igoy:  15; 
Peace  Palace  resolution,  20,  43; 
obligatory  arbitration,  322,  325, 
342 ;  Court  of  Arbitral  Justice, 
412. 

Dogger  Bank  (Hull  Fishermen), 
292,  296-297,  474,  492. 

D'Oliviera,  M.  (1907),  obligatory 
arbitration,  334. 

Dominican  Republic,  97,  108,  138, 

263,  3*9,  363,  368.  369,  37°,  425, 
461-462. 

Drago,  Dr.  Luis  M.  (1907),  15; 
belligerents  in  neutral  waters, 
151 ;  obligatory  arbitration,  320, 
333,  339,  340-34I ;  forcible  col- 
lection of  debts,  357,  358-364. 

Drago  Doctrine,   358-367,   370. 

Ecuador,  108,   138,  359,  370. 

Esteva,  M.  (1907),  International 
Prize  Court,  444,  445,  446. 

Eyschen,  M.  It!  i8gg:  13;  neutral 
rights  on  land,  199-200;  com- 
missions   of   inquiry,    285.      In 


igoy:  neutral  rights  on  land, 
211-212. 

Fish,  Hamilton,  356. 

Fisher,  Admiral  (1899),  new  arms 
and  methods,  84;  explosives, 
87. 

Foster,  John  W.  (1907),  exemp- 
tion of  private  property,  137. 

France,  71,  74,  78,  80,  82,  87,  91, 
93,  97,  102,  107,  112,  116,  119., 
124,  126,  127,  129,  135,  138,  139, 
142.  161,  162,  171,  174,  175,  179, 
201,  237,  263-265,  288,  292,  295, 

296»  334,  345,  349,  369,  37°,  408, 
411,  438,  442,  460.  See  also 
Amourel,  Bourgeois,  D'Estour- 
nelles, Fromageot,  Mounter,  Pe- 
phau,  Renault. 

Francis  I,  178. 

Frederick  II,  411. 

Fromageot,  M.  (1907),  Perma- 
nent Court,  388;  arbitral  pro- 
cedure, 405. 

Fry,  Sir  Edward  (1907),  15;  ad- 
dress at  closing  session,  44; 
armaments,  71-75;  asphyxiat- 
ing gases,  90;  commissions  of 
inquiry,  289-290,  292,  294; 
obligatory  arbitration,  314,  323, 

334,  339,  342-343,  346,  348; 
forcible  collection  of  debts,  367 ; 
arbitral  procedure,  405,  406, 
409;  Court  of  Arbitral  Justice, 
417,  420,  424;  International 
Prize  Court,  427,  429,  430,  432- 

433,  437,  44i,  443,  480. 
Fusinato,    Professor   (1907),   com- 
missions of  inquiry,  292. 

Gana,  M.  (1907),  obligatory  arbi- 
tration, 321-322. 

Germany,  176,  342,  377,  417. 

German  Delegation  in  1899,  pub- 
licity, 22;  public  opinion,  23- 
24;  marine  cannon,  86;  tor- 
pedo boats,  91;  rams,  93;  Red 
Cross  refugees,  123,  124;  mus- 
kets, 179;  bullets,  182;  Geneva 
Convention,    191;     belligerents, 


5«> 


THE   TWO   HAGUE   CONFERENCES 


220;  obligatory  arbitration,  307 ; 
forcible  collection  of  debts,  349, 
350;  Permanent  Court,  23,  199, 
33o,  331,  374,  3&3,  386-387,  455- 
See  also  Miinster,  Schwarzhoff, 
Siegel,  Zorti. 

German  Delegation  in  1907,  pro- 
gramme, 50;  armaments,  71; 
warfare  in  the  air,  80,  82 ;  sub- 
marine mines,  96,  97,  99-100, 
481-482 ;  naval  bombardment, 
102 ;  merchant  ships  trans- 
formed into  cruisers,  106,  107; 
hospital  ships,  116;  exemption 
of  private  property,  138;  delay 
of  favor  to  merchant  ships,  141, 
142,  143;  exemption  of  mail, 
146;  belligerents  in  neutral  ports, 
^S2-l55l  blockade,  135,  159; 
contraband,  135,  161,  162,  460; 
neutral  prizes,  165;  neutral 
rights  and  duties  on  land,  203, 
207,  208,  209;  belligerents,  220- 
221;  prisoners  of  war,  230; 
means  of  injuring  the  enemy, 
235-236;  occupation  of  hostile 
territory,  256,  259 ;  opening  of 
hostilities,  264,  265;  special 
mediation,  277;  obligatory  ar- 
bitration, 312-313,  323,  325,  334, 
335,  338,  345,  463;  forcible  col- 
lection of  debts,  369,  370;  Per- 
manent Court,  389 ;  arbitral 
procedure,  403-405,  408;  Court 
of  Arbitral  Justice,  421;  Inter- 
national Prize  Court,  40,  427, 
438,  442,  445.  See  also  Bieber- 
stein,  Giindell,  Kriege,  Siegel. 

Gieslingen,  Baron  von  (1907),  oc- 
cupation of  hostile  territory,  257, 

259- 
Gilinsky,  Colonel  (1899),  arma- 
ments, 56-60,  62  ;  warfare  in  the 
air,  77,  79 ;  new  arms  and  meth- 
ods, 169;  explosives,  170,  171; 
field  guns,  171,  172;  muskets, 
172-173,  180;  bullets,  182; 
prisoners  of  war,  226;  spies, 
238-239;  occupation  of  hostile 
territory,    246,    247,   248. 


Gortschakof,  Prince,  135. 
Greco-Turkish  War,  120. 
Greece,  49,  80,  93,  138,  159,  175, 
237,  280,  282,  283,  284,  290,  296, 

323,  325,  334,  33%,  339,  345,  363, 

422,  425,  447. 
Grotius,  Hugo,  18,  476,  500. 
Guatemala,  108,  138,  359,  360,  370, 

425- 

Guiana  Arbitration,  392. 

Giindell,  General  von  (1907),  neu- 
tral rights  and  duties  on  land, 
212;    belligerents,  221. 

Haarlem,  17. 

Hagerup,  Francis  (1907),  16,  34; 
International  Prize  Court,  431, 

434,  J35,  442,  444-445- 
Hague,  The,  6-9,  17,  19,  101,  380, 

38J,  385>  394,  4I7- 

Haiti,  103,  138,  210,  276,  288-289, 
348,  368,  369,  419,  420,  425. 

Hale,  Chandler  (1907),  495. 

Hall  of  the  Knights  (Ridderzaal), 
8-9. 

Hamilton,  Alexander,  356,  359. 

Hammarskjold,  M.  (1907),  Inter- 
national Prize  Court,  430,.  443. 

Hav,  Secretary,  5,  8,  133,  464,  476. 

Heffter,   A.   W.,   356. 

Henry  IV,  495. 

Heuvel,  M.  van  den  (1907),  naval 
bombardment,  103. 

Hill,  David  J.  (1907),  Fourth  of 
July  Reception,  18;  obligatory 
arbitration,  326. 

Hjulhammar,  Captain  (1899), 
rams,  92. 

Hohenlohe,  Chancellor  von, 23,  387. 

Holls,  F.  W.  (1899),  13;  special 
mediation,  272-274.  276;  com- 
missions of  inquiry,  277,  2S6; 
obligatory  arbitration,  308,  310, 
329 ;  Permanent  Court,  372, 
376-378,379,38o,384,387,388; 
arbitral  procedure,  394,  395, 
399,  4oo,  401,  403. 

Honduras,  14. 

House  in  the  Woods  (Huis  ten 
Bosch),  7-8,  36,  39. 


INDEX 


511 


Howard,  Sir  Henry  (1907),  Inter- 
national Prize  Court,  435,  437, 

438,  439- 
Hull    Fishermen    (Dogger    Bank), 
292,  296-297,  474,  492. 

Institute    of  International    Law, 

200. 

International  Peace  Bureau,  457. 

International  Peace     Congresses, 

1,  457. 

Interparliamentary  Union,  4,  27, 
71,  331,  500. 

Italy,  43,  71,  80,  86,  91,  92,  94,  106, 
132,  134,  13S,  145-146,  i53>  IS6, 
158,  159,  179,  191,  229,  234,  237, 
264,  277,  288,  311,  319,  330,  334, 
407,  408,  438,  451-452.  See 
also  Fusinato,  Nigra,  Tornielli, 
Zuccari. 

Japan,  49,  71,  80,  81,  86,  91,  92, 
95,  96,  102,  105,  107,  119,  120, 
121,  138,  141,  152,  153,  155,  159, 
162,  164,  179,  191,  199,  203,  204, 
228-232,  259,  264,  325,  326,  345, 
348,  368,  438,  447,  460,  473. 
See  also  Sakomoto,   Tsudzuki. 

Jomini,  Baron,   177. 

Journalists.  In  iSgg,  21-23.  ?n 
IQOJ,  25-26. 

Karnebeek,  A.  P.  C.  van  (1899), 
13;  armaments,  60-61,  67;  as- 
phyxiating gases,  89 ;  muskets, 
180;  occupation  of  hostile  ter- 
ritory, 249-250.  Peace  Palace 
address,  1907,  19-20. 

Karnebeek,  H.  A.  van  (1907),  laws 
and  customs  of  naval  war,  167- 
168. 

Khuepach,  Lieut.  Col.  von  (1899), 
armaments,  62;  muskets,  173; 
prisoners  of  war,   227. 

Kriege,  Dr.  (1907),  obligatory  ar- 
bitration, 335-336,  337;  Per- 
manent Court,  387-388;  arbi- 
tral procedure,  403,  405,  406; 
International  Prize  Court,  427, 
431-433,  435,  437,  438- 


Kiinzli,    Colonel    (1899),    bullets, 

181,   182;    belligerents,   218. 
Kuropatkin,  General,  2. 

La  Barra,  M.  (1907),  forcible  col- 
lection of  debts,  359 ;  Court  of 
Arbitral    Justice,    417. 

Lammasch,  Professor.  In  i8gg: 
prisoners  of  war,  226;  occupa- 
tion of  hostile  territory,  251; 
commissions  of  inquiry,  277; 
obligatory  arbitration,  303 ; 
Permanent  Court,  372,  376,  38^. 
In  igoy :  Permanent  Court,  389; 
arbitral  procedure,  404 ;  Inter- 
national   Prize   Court,   445. 

"La  Perouse,"    145. 

Larreta,  M.  (1907),  International 
Prize   Court,    446. 

Lieber,    Professor,    215. 

Lincoln,  President,  214,  377,  401. 

Liszt,  F.  von,  356. 

Loeff,  M.  (1907),  arbitral  proced- 
ure, 406. 

London,  Treaty  of,   200. 

Low,  Seth  (1899),  Hugo  Grotius 
address,  18;   arbitral  procedure, 

395- 
Luxemburg,     10,     97,     138,     175, 
187,    200,    325,    345,    384.     See 
also  Eyschen. 

Macedo,  Count  (1899),  arbitra- 
tion, 379. 

Mahan,  Captain  A.  T.  (1899), 
armaments,  68;  new  naval 
arms  and  methods,  85;  marine 
cannon,  85,  86;  asphyxiating 
gases,  88-90;  torpedo  boats, 
91;  rams,  92;  hospital  ships, 
112-113,  114,  115,  117;  Red 
Cross  officials,  119;  Red  Cross 
refugees,  123-124;  bullets,  186; 
Geneva  Convention,   192. 

Marshall,  Chief  Justice,  434. 

Martens,  Professor  Fedor  de. 
In  iSgg:  13,  34;  exemption 
of  private  property,  127-128; 
Geneva  Convention,  191,  199; 
neutrals    on    land,     200;     laws 


5i2 


THE   TWO   HAGUE   CONFERENCES 


and  customs  of  warfare  on 
land,  214-215,  470;  belliger- 
ents, 217-219;  occupation  of 
hostile  territory,  244-245 ;  spe- 
cial mediation,  275;  commis- 
sions of  inquiry,  277-278,  282- 
283,  287 ;  obligatory  arbitra- 
tion, 305 ;  forcible  collection  of 
debts,  349,  350;  Permanent 
Court,  199,  372,  375,  379,  385- 
386,  416;  arbitral  procedure, 
391,394,398,400,401.  Inigoy: 
16,  34,  479-480,  499-500;  ori- 
gin of  conference,  50;  exemp- 
tion of  private  property,  135, 
139;  delay  of  favor,  141;  ex- 
emption of  certain  ships,  144; 
neutrals  on  the  sea,  148;  block- 
ade, 157-158;  contraband,  160; 
neutral  prizes,  163;  laws  and 
customs  of  naval  war,  167; 
special  mediation,  276-277; 
commissions  of  inquiry,  289- 
292,  296-297;  obligatory  arbi- 
tration, 320,  323,  328,  330,  339; 
forcible  collection  of  debts, 
356-357 ;  Permanent  Court, 
389-390 ;  arbitral  procedure, 
404,  407 ;  Court  of  Arbitral 
Justice,  416-417,  418;  Inter- 
national Prize  Court,  437,  439. 

Matte,  M.  (1907),  forcible  col- 
lection of  debts,  362. 

Merey,  M.  de  (1907),  obligatory 
arbitration,  314,  324,  325,  337- 
339,  343-346;  International 
Prize  Court,  439. 

Merignac,  356. 

Mexico,  80,  97,  106,  108,  138, 
175,  222,  334,  359,  4i8,  419, 
425,  464.  See  also  Esteva, 
La  Barra,  Zenil. 

Mexico,  Treaty  of,  362. 

Michelson,  Colonel  (1907),  belliger- 
ents, 222 ;  opening  of  hostilities, 
263,  264. 

Mill,  John  Stuart,  135. 

Milovanovitch,  M.  (1907),  obliga- 
tory arbitration,  317,  318;  forci- 
ble collection  of  debts,  362,  367. 


Mirza  Riza  Khan  (1899),  occu- 
pation of  hostile  territory,  253- 

254- 
Monaco,  11. 

Monroe  Doctrine,  311,   362,  491. 
Montenegro,    10,    11,    14,   80,   97, 

i38,    J43,    162,    175,    222,    259, 

325,  345,  447- 

Mortera,  Count  (1907),  Inter- 
national Prize  Court,  444. 

Mounier,  General  (1899),  arma- 
ments, 62 ;  warfare  in  the  air, 
77;  bullets,  182;  spies,  239; 
flags  of  truce,  240. 

Mouravieff,    Count,    2,    3,    6,    45, 

53-54,  3*5- 
Minister,   Count   (1899),    13;    ad- 
dress   at    closing    session,     39 ; 
Permanent  Court,   387 ;    public 
opinion,  499. 

Napoleon  I,  1,  499. 

National  Educational  Association, 
v. 

Nelidow,  M.  (1907),  16;  Peace 
Palace  address,  20;  president 
of  the  conference,  7,7,,  41 ;  address 
at  opening  session,  41-42;  ad- 
dress at  closing  session,  43 ; 
programme,  51;  armaments, 
70,  74-75 ;  exemption  of  private 
property,  134;  obligatory  arbi- 
tration, 346,  347,  348;  Court  of 
Arbitral  Justice,  425,  426;  In- 
ternational Prize  Court,  441- 
442 ;  warfare  on  the  sea,  479- 
480. 

Nesselrode,  Count,   130,   135. 

Netherlands,  6,  7,  8,  11,  17-19, 
34,  37,  39,  49,  86,  91,  92,  95, 
i36,  x38,  142.  159,  J74,  175,  l86> 
220,  243,  256,  264,  282-283, 
288-290,  311,  319,  334,  371, 
408,  438,  501.  See  also  Asser, 
Beaufort,  Kaniebeek,  Loeff,  Poor- 
tugael,  Rahusen,  Tets. 

New  York  Peace    Congress,   412, 

4i5- 
New  York  State  Bar  Association, 

141,   458. 


INDEX 


513 


Nicaragua,  97,  108,  138,  143,  359, 
360,  363,  370. 

Nigra,  Count  (1899),  13;  exemp- 
tion of  private  property,  132; 
naval  bombardment,  166;  flags 
of  truce,  240;  good  offices  and 
mediation,  268-270;  commis- 
sions of  inquiry,  284;  obliga- 
tory arbitration,  303,  309,  328; 
Permanent  Court  of  Arbitra- 
tion, 372,  375,  386. 

Norway,  14,  135,  138,  162,  334, 
368,  425,  438,  445,  447.  See 
also  Hagerup. 

Nys,  356. 

Odier,  M.  (1899),  Geneva  Con- 
vention, 1907,  192;  commis- 
sions of  inquiry,  288 ;  obligatory 
arbitration,  307-308 ;  Perma- 
nent Court,   372,   375-376. 

Ottley,  Captain  C.  L.  (1907),  15; 
submarine  mines,  94;  naval 
bombardment,  101-102,  103; 
delay  of  favor  to  merchant  ships, 
141. 

Palmerston,  Lord,  134,  356. 
Panama,  97,  138,  162,  230,  420. 
Pan-American      Conferences,      5, 

3i6-3i7»  3*9- 

Papiniu,  M.  (1899),  arbitral  pro- 
cedure, 393. 

Paraguay,  97,  108,  138,  143,  359, 

36°,  363,  37o- 

Paris,  Declaration  of,  1856,  105, 
108,  133,  157-158,  430,  432, 
466,  479,  483. 

Paris,  Treaty  of,  1856,  268. 

Pauncefote,     Sir     Julian     (1899), 
13;    exemption  of  private  prop- 
erty,   128,    133;     Geneva    Con- 
vention,    191 ;      occupation     of 
hostile     territory,     255;      good 
offices     and     mediation,      268 
commissions    of    inquiry,     284 
forcible  collection  of  debts,  349 
Permanent  Court,  371-373,  379, 
382,  385,  386,  387. 

Peace  Palace,  19-20,  41,  43. 


Penn,  William,  417,  495. 

Pephau,  Admiral  (1899),  new 
arms  and  methods,  83;  marine 
cannon,    86;     explosives,    87. 

Perez  Triana,  M.  (1907),  address 
at  closing  session,  44;  exemp- 
tion of  private  property,  136; 
forcible  collection  of  debts, 
364-366. 

Persia,  80,  92,  108,  115,  116,  118, 
138,  174,  175,  339,  368,  408, 
420,  425,  439,  447.  See  also 
Mirza,  Samad. 

Peru,  80,  138,  320,  322,  324,  325, 
359,  360,  370.  See  also  Can- 
damo. 

Poortugael,  General  den  Beer.  In 
i8qq:  armaments,  55-56,  61; 
warfare  in  the  air,  77;  new 
arms  and  methods,  84 ;  naval 
bombardment,  234;  muskets, 
175-179;  bullets,  181.  Inigoy: 
16;  naval  bombardment,  101 ; 
exemption  of  mail,  146;  occu- 
pation of  hostile  territory,  256- 
257,  259-260;  opening  of  hos- 
tilities, 263-264;  International 
Prize  Court,  434. 

Porter,  General  Horace  (1907), 
15;  merchant  ships  transformed 
into  cruisers,  108;  delay  of 
favor  to  merchant  ships,  143; 
blockade,  158-159;  opening 
of  hostilities,  266;  forcible 
collection  of  debts,  352-370; 
International  Prize  Court,  427. 

Porter  Proposition,  351-352,  358- 
370,  491-492. 

Portsmouth,    N.H.,    Peace   of,    5, 

473- 
Portugal,    80,    87,    93,    135,    138, 

144-145.  I53.  I02.  !79,  185, 
187,  188,  259,  319,  334,  369, 
419,  444,  462,  468.  See  also 
D'Oliveira,  Macedo,  Sovcral, 
Vasconcellos. 

Programme,  45-51. 

Publicity,  21-26. 

Public  Opinion,  23-27,  464,  498- 
499. 


5i4 


THE   TWO   HAGUE   CONFERENCES 


RafTalovich,  M.  (1899),  bullets, 
183. 

Rahusen,  M.  (1899),  exemption 
of  private  property,  129. 

Reay,  Lord  (1907),  warfare  in 
the  air,  80;  merchant  ships 
transformed  into  cruisers,  105; 
contraband,  1 60-1 61,  162;  as- 
phyxiating gases,  188;  neutral 
rights  and  duties  on  land,  204, 
207,  209 ;  occupation  of  hostile 
territory,  261. 

Renault,  Professor  Louis.  In 
i8qq:  hospital  ships,  112;  Per- 
manent Court,  386.  In  igoj: 
15;  warfare  in  the  air,  82,  237; 
hospital  ships,  117;  exemption 
of  private  property,  135;  oblig- 
atory arbitration,  339,  341, 
344;  arbitral  procedure,  408; 
International  Prize  Court,  427. 

Rivier,  A.,  356. 

Rolin,  M.  (1899)  [and  1907],  ex- 
plosives, 87 ;  prisoners  of  war, 
227;  armistice,  241;  capitula- 
tions, 242-243. 

Roman  Papacy,  11,  39. 

Roosevelt,  President,  5,  8,  13,  40- 
4i,  133,  356,  412,  417.  473.  494- 

Root,  Secretary,  415,  457,  472, 
500-501,  502-503. 

Rotterdam,   19. 

Roumania,  80,  86,  92,  138,  162, 
171,  174,  175,  176,  182,  230, 
259,  280,  283,  284,  295,  296, 
3°2.  3°3,  325,  345.  348,  369, 
370,  408,  419,  422,  425,  444,  447- 
See  also  Beldiman,  Coanda, 
Papiniu,  Sturdza. 

Russia,  2,  3,  5,  ^3,  36>  38,  45.  47. 
5°,  55,  69-70,  71,  76,  80,  86, 
87,  91,  93,  97,  106,  112,  118, 
124,  127,  129,  133,  134,  135, 
138,  141,  142,  143,  152-155, 
162,  164,  171-176,  179,  186, 
205,  220,  235,  237,  259,  260, 
261,  264,  277,  286,  288-291, 
293,  297-300,  326-328,  330, 
331.  334,  345.  349,  35°,  37°. 
404,   410,   420,   439,    447,   456> 


473,  474,  501.  See  also  Gi~ 
Husky,  Martens,  Michelson,  Neli- 
dow,  Rajfalovich,  Scheine,  Staal, 
Yermolow. 
Russo-Japanese  War,  4,  5,  93,  94, 
126,  203,  473,  479. 

Saenz  Pefia,  M.  (1907),  address 
at  closing  session,  44. 

St.  Petersburg,  Declaration  of, 
89,  169-170,  185,  453,  468. 

Sakomoto,  Captain  (1899),  new 
arms  and  methods,  83. 

Salisbury,  Lord,   356,  415. 

Salvador,   108,   138. 

Samad  Khan  (1907),  address  at 
closing  session,  44;  obligatory 
arbitration,    317,    318-319. 

San  Marino,  n. 

Satow,  Sir  Ernest  (1907),  sub- 
marine mines,  98-99 ;  blockade, 
158;  neutral  prizes,  164-165; 
laws  and  customs  of  naval  war, 
168. 

Scheine,  Captain  (1899),  arma- 
ments, 56-57,  65-66;  new 
arms  and  methods,  83,  84; 
marine  cannon,  85 ;  explosives 
and  asphyxiating  gases,  87; 
rams,  92;  hospital  ships,  112; 
Red  Cross  refugees,  120;  ex- 
emption of  private  property,  128; 
neutral  rights  and  duties,  147. 

Scheveningen,   17. 

Schwarzhoff,  Colonel  von  (1899), 
armaments,  58-59,  60-62 ;  mus- 
kets, 174,  175,  178,  179,  181; 
belligerents,  221-222;  prisoners 
of  war,  224;  spies,  238;  flags 
of  truce,  240;  armistice,  241, 
242 ;  occupation  of  hostile 
territory,    245,    248-251. 

Scott,  Sir  Charles,  53. 

Scott,  Dr.  J.  B.  (1907),  commis- 
sions of  inquiry,  294;  obliga- 
tory arbitration,  338,  339,  344; 
Court  of  Arbitral  Justice,  415- 
416,  421,  422,  423,  495. 

Servia,  138,  272,  280,  283,  284, 
290,    296,    308,    310,    332,    334, 


INDEX 


515 


339.  36°,  363,  368,  4iQ,  444, 
147.  See  also  Milovanovitch, 
Veljkovitch. 

Siam,  10,  11,  86,  gi,  93,  97,  115, 
116,  121,  138,  175,  282,  33Q, 
425.     See  also  Rolin. 

Siegel,  Captain  and  Admiral.  In 
iSqq:  hospital  ships,  114.  In 
IQOJ:  submarine  mines,  05; 
hospital  ships,   1 1  7. 

Soltyk,  Count  (1899),  asphyxi- 
ating gases,  87. 

South  African  Republic,  10, 
11. 

Soveral,  Marquis  de  (1907),  16; 
contraband,  162;  obligatory 
arbitration,    317-318,    331,    339. 

Spain,  49,  71,  74,  80,  93,  102, 
103-104,  108,  137,  138,  153, 
171,  175,  230,  368,  464.  See 
also  Mortera. 

Sperrv,  Admiral  Charles  S.  (1007), 
submarine  mines,  95;  delay 
of  favor  to  merchant  ships, 
142;  belligerents  in  neutral 
ports,    157. 

Staal,  Baron  de  (18)0),  13;  presi- 
dent of  the  conference,  28; 
address  at  opening  sessions, 
36-38  46,  47 ;  address  at 
closing  session,  39;  armaments, 
55;  warfare  on  land,  169; 
arbitration,  298;  forcible  col- 
lection of  debts,  349;  Perma- 
nent  Court,   372,   47(1. 

Stancioff,  Dr.  (1899),  armaments, 
61-62;  commissions  of  inquiry, 
287-2S8. 

Stead,  Win.  T.,  vii. 

Story,   Justice,   434. 

Stowell,    Lord   Justice,   434. 

Sturdza,  Captain  (1007),  occupa- 
tion  of    hostile   territory,    258. 

Suttner,    Baroness  von,    24. 

Sweden,  67,  80  86,  01,  03,  135, 
[38,  [62,  171,  175,  176,  237, 
323,  325,  332,  334,  W,  363, 
370,  438  See  also  Bildt,  Brand- 
strum,  Hammarskjold,  II 'mi- 
lium mar. 


Switzerland,  109,  138,  162,  175, 
179,  191-193,  210,  219-220, 
221,    222,    252,    323,    334,    338, 

33').  345-  359,  369,  37°-  3's4- 
408,  422,  425,  426,  444,  ]d|. 
See   also   Borel,    Kiinzli,    Odirr. 

Tennyson,   Alfred,  497. 

Tets  van  Goudriaan,  Jonkheer 
(1907),  address  at  opening 
session,  40-41;  address  at 
closing  session,  44. 

Third  Peace  Conference,  43,  500- 

5°  3- 

Tocqueville,  M.  de,  341. 

Tornielli,  Count  (1907),  16,  34; 
address  at  closing  session,  44; 
exemption  of  certain  ships, 
145;  neutral  prizes,  165;  pris- 
oners of  war,  228;  obligatory 
arbitration,  338,  347;  forcible 
collection  of  debts,   369. 

Tsudzuki,  M.  (1907),  address  at 
closing  session,  44;  obligatory 
arbitration,  324;  International 
Prize   Court,   429. 

Turkey,  11,  67,  80,  93,  97,  104, 
108,  115,  116,  118,  120,  123, 
138,  159,  162,  171,  179,  203, 
237>  290,  325,  326,  330,  345. 
348,  369,  447.  See  also  Turk- 
litin. 

Turkhan  Pacha  (1899)  [and 
1907],  capitulations,    243. 

United  States:  Civil  War,  133; 
Congress,  133,  434;  Constitu- 
tion, 350,  361,  404;  General 
Order  No.  100,  227,  228,  233, 
248,     254,     255,     467;      Senate, 

329,  335,  337-  33^  34 1 ■  368, 
464,  485,  486,  496;  Supreme 
Court,  433,  434. 
United  States  Delegation  in  1899, 
seats,  12;  Delft  celebration. 
18;  armaments,  68-69;  new 
naval  arms  and  methods,  84- 
85;  marine  cannon,  86;  as- 
phyxiating gases,  88-90;  tor- 
pedo    boats,     01  ;       rams,     92 ; 


5i6 


THE   TWO    HAGUE   CONFERENCES 


Red  Cross  refugees,  122,  123, 
124;  exemption  of  private 
property,  126-132,  451-452; 
muskets,  [79,  180,  bullets,  182 
185,  1S7,  468;  Geneva  Con- 
vention, [92;  belligerents,  220; 
obligators-  arbitration,  310-31 1, 
329,  330;  forcible  collection  of 
debts,  349,  350;  Permanent 
Court,  376,  383;  arbitral  pro- 
cedure, 401,  404;  signature, 
463-464.  See  also  Crozier, 
Halls,  Low,  Mahan,  White. 
United  States  Delegation  in  1907, 
seats,  15;  honorary  offices, 
34;  forcible  collection  of  debts, 
42,  49,  50;  armaments,  49, 
71-  73-74;  programme,  50; 
warfare  in  the  air,  82;  sub- 
marine mines,  95,  96;  naval 
bombardment,  100-101 ;  mer- 
chant ships  transformed  into 
cruisers,  108;  exemption  of 
private  property,  133-141,  458- 
450;  delay  of  favor  to  merchant 
ships,  143-144,  485;  belliger- 
ents in  neutral  ports,  157,  486; 
blockade,  159,  459;  contra- 
band, t6i,  162,  460;  neutral 
prizes,  163-164,  165;  bullets, 
1S8-189;  neutral  rights  and 
duties  on  land,  20S ;  prisoners 
of  war,  230,  231;  occupation 
of  hostile  territory,  259;  open- 
ing of  hostilities,  264,  266; 
special  mediation,  277;  com- 
missions of  inquiry,  293 ;  oblig- 
atory arbitration,  315-317,  326, 
332,'  334,  336-338-  345,.  348, 
462-463 ;  forcible  collection  of 
debts,  352,  354-355;  arbitral 
procedure,  404;  Court  of  Arbi- 
tral Justice,  410,  421,  425-426, 
403;  International  Prize  Court, 
438,  442,  445;  signature,  464; 
Third  Peace  Conference,  501. 
See  also  Choate,  Davis,  Hill, 
Porter,  Scatt,  Spcrry. 


Universal   Postal   Union,   382. 
Uruguay,  108,  138,  359,  360,  370, 
419,  422,  425.     See  also  Castro. 

Vasconcellos,  M.  (1899),  media- 
tion,   275. 

Yeljkovitch,  Professor  (1899),  oc- 
cupation of  hostile  territory, 
247;  good  offices  and  media- 
tion, 270;  commissions  of  in- 
quiry, 281-282;  obligatory  arbi- 
tration, 306,  331. 

Venezuela,  80,  138,  278,  359,  363, 
370,    419,    420,    425,    447,    499. 

Venezuela  Arbitration,  390,  391, 
417. 

Walker,  T.  A.,  356. 

Washington,   Treaty  of,    157. 

Welsersheimb,  Count  (1899),  arbi- 
tration,  382. 

White,  Andrew  D.  (1899),  13; 
Hugo  Grotius  address  at  Delft, 
18;  asphyxiating  gases,  go; 
exemption  of  private  property, 
127-132,  106,  451-452;  bullets, 
186;  Geneva  Convention,  192; 
Permanent  Court,  387. 

Wilson  and  Tucker,  356. 

Witte,  M.,  2. 

Woolsey,  T.  D.,  356. 

Yermolow,  General  (1907),  occu- 
pation of  hostile  territory,  257; 
opening  of  hostilities,   263. 

Zenil,    M.    (1899),     capitulations, 

243- 

Zorn,  Professor  (189c/)  [and  1007], 
13;  obligatory  arbitration,  307, 
311,  312,  328,  330;  Permanent 
Court,  372,  374-376,  37s,  380, 
382,  386,  387 ;  laws  and  customs 
of  warfare  on  land,  470. 

Zuccari,  General  (1899),  arma- 
ments, 62;  muskets,  173;  ar- 
mistice,   241-242. 


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